PLAYSTATION®Mobile FORMAT LICENSED PUBLISHER AGREEMENT
November 5, 2012
PLEASE SCROLL DOWN AND READ THIS AGREEMENT CAREFULLY. TO BECOME A PLAYSTATION®MOBILE FORMAT PUBLISHER, YOU MUST AGREE TO THESE TERMS BY CLICKING ON THE “AGREE” BUTTON BELOW. IF YOU DO NOT AGREE TO THESE TERMS, YOU WILL NOT BE ABLE TO PROCEED. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN THE ORGANISATION NAMED IN YOUR APPLICATION AND SONY COMPUTER ENTERTAINMENT EUROPE LIMITED (“SCEE”).
The meanings of all capitalised terms used in this Agreement are set out in Schedule 1 below unless otherwise stated.
1. LICENCE TO PUBLISH ONLINE PRODUCTS
1.1 Subject to the terms of this Agreement and payment of Annual Licence Fee, we grant you a non-exclusive, non-transferable licence, within the Territory during the Term, to: (i) publish, distribute, supply and sell Online Products through SCEE or an Affiliate on (and only on) the PlayStation®Network; and (ii) sublicense Users the right to use Online Products for personal, non-commercial purposes in conjunction with the PSM Compatible Devices only, and not with other devices or for public performance; and (iii) market, advertise and promote Online Products.
1.2 You may advertise Online Products and we reserve the right to require you to submit any or all Advertising Materials to us in advance of distribution. Subject to Section 10.6, you may serve, provide or include non-dynamic advertising for Online Products or other products, product placement and sponsorship, in or in conjunction with Online Products. Such advertising may include dynamic advertising but only with our prior, written consent (such consent to be in SCEE’s absolute discretion) and provided it is served, provided or included in conjunction with our nominated advertising distribution partners. All advertising, product placement and sponsorship permitted under this Agreement must be carried out strictly in accordance with the Guidelines.
1.3 We or any Affiliate may commercially exploit concept(s) and/or product(s) which are coincidentally similar to any Online Product concept or product, which have been independently developed by us, any Affiliate or any third party without reference to or reliance upon your work.
1.4 We may change any term of this Agreement at any time on reasonable notice and you must accept any new terms provided to you by us, in the manner specified by us, in order to continue to exercise your rights under this Agreement.
2. PUBLISHING CONDITIONS
2.1 The licences granted to you under this Agreement are expressly conditioned on your compliance, throughout the Term, with the Guidelines as and when the Guidelines are published or within a commercially reasonable time following receipt. You shall not be required to implement any revisions to the Guidelines in respect of anything already notified under Section 3.1, save as provided under Section 2.4 or unless we consider this to be reasonably necessary. You acknowledge and agree that PSM Compatible Devices that operate on older versions of the Android OS may not be compatible with Online Products developed pursuant to Guidelines. You shall make commercially reasonable efforts to update your existing Online Products if and when Guidelines are updated to reflect any changes, updates or upgrades to the Android OS.
2.2 All Online Products must distributed, supplied or sold via the commerce system of the PlayStation®Network only, and must use or support the digital rights management rules, specified in the Guidelines, and the Online IDs of the PlayStation®Network.
2.3 Where your Online Products offer Online Gameplay, you must comply with the terms of Schedule 2 and any specific provisions in the Guidelines.
2.4 Other than where we consent in writing in advance in each case (such consent to be in SCEE’s absolute discretion):
2.4.1 you may not bundle any Online Product with any other goods or services;
2.4.2 an Online Product, consisting of additional content for use with an already-published Online Product, may not be published as a standalone product. Should you wish to publish such additional content, the relevant Online Product must be re-submitted, together with the additional content, under Sections 3.1 and 6.2. You are not required to re-rate such submissions under Section 4.1 unless there is a requirement to rate the full submission, or the additional content, under local law or by the consumer advisory ratings system designated by us under that Section;
2.4.3 you may not develop Online Products for use in conjunction with any third-party peripherals (e.g., controllers, memory storage devices, etc.). Where we consent to the development of an Online Product for use with any third party peripheral, you shall be solely responsible for functionality and operational compatibility of Online Products with any third-party peripherals and for any actual, incidental or consequential damages that may result from any use or inability to use any third-party peripherals with any Online Products or the PSM Compatible Devices. We shall have no responsibility to test or otherwise evaluate the compatibility of Online Products with any third-party peripherals. In the event that any Online Product fails to perform to our satisfaction with any third-party peripheral that it is intended to support, we shall have the right to require that you modify or remove such portions of the Online Product as are intended to support the affected third-party peripheral.
Unless otherwise agreed in writing, where we grant consent under this Section 2.4, the terms of this Agreement shall apply, where appropriate, to the relevant bundle or Online Product which shall be deemed to be Online Products for the purposes of this Agreement
3. STANDARDS FOR ONLINE PRODUCTS
3.1 Before publishing any Online Product, you must comply with all requirements for format quality assurance of Online Products on a product-by-product basis, as specified in the Guidelines.
3.2 If at any time after we have approved any part of an Online Product pursuant to Section 3.1, we identify a material defect with respect to any Online Product (such materiality to be determined by us in our sole discretion), you shall, at your cost, promptly correct any such material defects, or improper use, to our commercially reasonable satisfaction (which may include publication of an update, upgrade or technical fix to an Online Product).
4. RATING REQUIREMENTS
4.1 No Online Product may be marketed, advertised, promoted, published, distributed, supplied or sold unless it bears a consumer advisory age rating, consisting of a rating code and product descriptors, either as required by local law or as issued by, and following the rating display requirements of, a consumer advisory ratings system designated by us in the Guidelines. Unless otherwise agreed, Online Products must be rated for all required Territories at the time of submission even if the Online Product is not intended to be released in all countries of the Territory, and you shall be responsible for all costs and expenses incurred in connection with obtaining such ratings. No Online Product nor any Advertising Materials may bear more than one consumer advisory rating. Any Online Product that can be used with a previously-published Online Product must bear a rating that is the same as or lower than the rating issued to the previously-published Online Product, unless we otherwise agree in writing.
4.2 You must comply with our policies in relation to the protection of children engaging with Online Products.
We or any Affiliate may provide advice or support to you from time to time to assist you with the publication of Online Products. Such advice or support is provided at the sole option of us or any Affiliate, and we reserve the right to change, suspend, remove or disable access to any such advice or support, or to impose limits on its use, at any time without notice without incurring any liability to you. Any Publisher Software or other software, materials or information provided by you to us or any Affiliate to enable us or any Affiliate to provide such advice or support shall be provided at your own risk.
6. DISTRIBUTION OF ONLINE PRODUCTS OVER THE PLAYSTATION®NETWORK
6.1 At your request, we may offer and supply specified Online Products to Users over the PlayStation®Network in accordance with, and subject to, the terms of this Agreement.
6.2 Such requests must be notified to us via the Developer Portal, with details of your charge to us for the Online Products concerned, at the times and in the form and manner set out in the Guidelines (“Product Notification”). Any changes to the information in a Product Notification must be notified to us by way of a separate Product Notification. You shall also provide Product Information and other details of each Online Product to us as set out in the Guidelines.
6.3 There will be no obligation on us to supply any Online Product under this Agreement until we have accepted the relevant Product Notification, and each accepted Product Notification will constitute a separate contract between us. All such contracts, and all Product Notifications, are subject to the terms of this Agreement, and your own terms and conditions shall have no effect.
6.4 You shall be responsible for ensuring the accuracy and completeness of all Online Products and the Product Information and other information provided to us under Section 6.2. We shall have no obligation to you to review such Online Products or the Product Information provided under Section 6.2 to determine whether any such Online Products or Product Information are accurate or complete or whether they may result in any liability to any third party.
6.5 The management of the PlayStation®Network and the timing, manner, extent and duration of any offer, display, supply, distribution, delivery, marketing, advertising and promotion of Online Products (including the decision as to which part(s) of the PlayStation®Network on which to display, offer, distribute or advertise Online Products and the right to remove an Online Product from the PlayStation®Network or from PSM Compatible Devices) shall be determined by us alone, acting reasonably and in good faith. We will determine the price, if any, at which Online Products are made available to Users in our sole discretion.
6.6 Any terms or conditions imposed by you on Users of any Online Product must comply with applicable law and must not be inconsistent with any agreement between us and Users, or this Agreement. We reserve the right to review such terms, but shall have no liability for the content or performance of such terms.
6.7 We shall be entitled to suspend the PlayStation®Network, including the offer or supply of a particular Online Product, without incurring any liability to you, in the event that, and for as long as, we consider this to be reasonably necessary.
7. LICENCE TO DISTRIBUTE ONLINE PRODUCTS OVER THE PLAYSTATION®NETWORK
7.1 You grant to us throughout the Territory a licence to: (i) sell and electronically distribute Online Products (either alone or as part of a compilation) and Product Information to Users over the PlayStation®Network and, for that purpose, to host and copy Online Products and Product Information; (ii) show, play and communicate Online Products and Product Information to the public over the PlayStation®Network; (iii) sublicense Users the right to browse and download, and the perpetual right to store and use, the Online Products for personal, non-commercial purposes in conjunction with each of the PSM Compatible Devices and Users’ PlayStation®Network accounts only, and not for public performance, and to permit all such rights to be exercised, in respect of each Online Product downloaded by a User, to the extent specified under the digital rights management rules specified in the Guidelines without further payment obligation on us under Section 10 (or otherwise) or on the User; (iv) in accordance with the Guidelines, or as otherwise agreed between us, market, advertise and promote Online Products to Users, and reproduce and distribute through any media now known, or later developed, Product Information and extracts of Online Products, refer to Online Products, and utilise your name and/or logo and trademarks for the purposes of advertising, marketing and promoting Online Products, the PSM Compatible Devices or the PlayStation®Network; and (v) make and retain copies of, and use, each Online Product and Product Information as may be necessary for User support, and for archiving, administrative and legal purposes.
7.2 The licences granted under Section 7.1 will continue for as long as may be necessary to enable us to exercise our rights and to fulfil our obligations under this Agreement.
7.3 We shall only be taken to have exercised our rights under Section 7.1 in respect of any Online Product in a particular country where our activities in respect of that Online Product are directed at that country. Access to, use of or download of such Online Product via the PlayStation®Network by a User outside the Territory shall not constitute a breach of this Agreement or a breach of your or any other person’s Intellectual Property Rights.
7.4 We shall be entitled to permit a User, in accordance with the terms of Section 7.1(iii), to re-download and use any Online Product it previously legitimately downloaded whether for payment or otherwise via the PlayStation®Network, where that User’s PSM Compatible Device is replaced (whether pursuant to the warranty or otherwise) without further payment obligation on us under Section 10 (or otherwise) or on the User.
8. USER DATA
All information provided by Users to us shall be owned by us or our Affiliates and, subject to the provisions of this Section 8, we shall have no obligation to disclose that information to you. We shall disclose personal data provided to us by Users where we consider it necessary in order to enable you to fulfil your obligations under this Agreement provided we are entitled by law to do so.
9. LIMITATIONS AND RESERVATIONS
9.1 This Agreement does not grant any right or licence in respect of, and you shall not use, the SCEE Materials or any of the SCEE Intellectual Property Rights except as expressly authorised under this Agreement and in strict compliance with the terms and conditions of this Agreement. No other right or licence is to be implied by or inferred from any provision of this Agreement or our conduct.
9.2 All rights with respect to the SCEE Materials, the PSM Compatible Devices, the PlayStation®Network, any services provided via the PlayStation®Network, any development undertaken by us to integrate, display or supply the Online Products and anything created or developed by us in the course of exercising our rights and obligations under this Agreement, including all SCEE Intellectual Property Rights in any of the same, are the exclusive property of us or our Affiliates. You shall not register any trademark in your own name or in any other person’s name, or use, or obtain rights to use internet domain names or addresses, which are identical or similar to, or are likely to be confused with, any of our trademarks or of any Affiliate. Nothing contained in this Agreement shall be deemed to grant you the right to use the trademark “Sony” in any manner or for any purpose. Nothing in this Section 9 shall be taken to prevent you from challenging the validity of the SCEE Intellectual Property Rights.
9.3 We reserve the right to require you to use an authentication or authorisation system to be provided, licensed or designated by us to authenticate and verify all Online Products and units of the PSM Compatible Devices.
9.4 Separate and apart from the rights expressly licensed to you by us under this Agreement, as between us, you retain all rights, title and interest in and to the Online Products including any source code and other underlying material such as artwork and music (separate and apart from the SCEE Materials), Product Information and Advertising Materials, and all Intellectual Property Rights in them, and any names used as titles for the Online Products and other trademarks used by you.
10.1 It is a condition of the rights granted to you under this Agreement that you pay a non-refundable Annual Licence Fee to us at the rate stated in, and in accordance with the procedures, set out in Guidelines. For the avoidance of doubt, failure to pay the Annual Licence Fee shall in no way affect our rights under Section 7 unless we exercise our right to terminate this Agreement under Section 17.2.
10.2 The Developer Portal shall display, from time to time, the amounts owed to you, at the rate agreed under Section 6.3, in respect of each sale by us to a User of an Online Product, if any, pursuant to the licence granted to us under Section 6.1. Subject to Section 10.3, you consent to the use by us of self-billed invoices which shall be issued to you, for each calendar month of the Term, via the Developer Portal (or otherwise in a manner specified by us), within 34 days from the last day of the month covered by the relevant invoice (save that, if that is not a working day, by the next working day). Each such invoice shall be paid by us within 45 days from the last day of the month covered by the relevant invoice. However, if the amount payable to you under this Agreement (including any withholding tax) does not exceed the threshold amount as designated in the Guidelines (“Threshold Amount“), then (subject to Section 10.8) the obligation on us to issue and pay an invoice under the terms of this Section 10.2 shall be suspended, without incurring any interest or liability to you, until the amount, when combined with the amount payable under this Agreement for the following month(s), exceeds the Threshold Amount. Payments will be made to your designated bank account or via a payment service separately designated by us. For the avoidance of doubt, you shall be entitled to be paid at the agreed rate once only in respect of the sale of an Online Product to a User irrespective of whether the User subsequently plays or accesses that Online Product via all, some or one of the PSM Compatible Devices.
10.3 Both parties to this Agreement agree that we (or our Affiliate) shall raise self-billed invoices in respect of the sums due to you under section 6.3 in respect of the licence granted to us under Section 6.1. We shall also raise all credit notes in respect of any sums due to us where relevant under this Agreement. During the Term, we (or our Affiliate) will complete self-billed invoices and credit notes showing your name, address, VAT registration number and any other details required for completion of a valid VAT invoice or credit note. You agree throughout the Term: (i) not to raise invoices or credit notes to us for the sums due to you or due to us under this Agreement; (ii) as a condition of this Agreement, to notify us of any changes to your company name, address or VAT registration number and to notify us should you cease trading or if there is a sale or change of control of your business; (iii) to enter into a new agreement with us should there be any change in your VAT registration number or VAT status; (iv) to accept all liability, including VAT assessments, underpayments and penalties, arising from your failure to comply with the obligations under this Section 10.3 in a timely manner; and (v) that the arrangements under Sections 10.2 and 10.3 with respect to self-billing and credit notes do not apply to any other existing or future agreements which you have with us. You shall notify us of any errors or omissions in any self-billed invoice or credit note within 10 days of the date of such self-billed invoice or credit note. You agree that Sony Computer Entertainment Inc. 1-7-1 Konan, Minato-kuTokyo 108-0075, Japan (or such other company notified to you in writing from time to time) may produce self-billed invoices and credit notes on our behalf pursuant to this Agreement.
10.4 If we have to refund the price paid to the User for any sale due to a defect in an Online Product or your breach of this Agreement, or where we otherwise choose to make a refund to a User where we consider it (in our sole discretion) reasonable to do so, we shall not be obliged to make any payment to you under Section 10.2 in respect of that sale. All refunds will be itemised in the self-billed invoices provided by us under Section 10.2. If we have already paid you, or provided a self-billed invoice to you, under Section 10.2 for any sale which is later refunded, we will deduct the relevant amount from the next payment due to you under Section 10.2. We shall issue credit notes to you for all such refunds in the month following that in which we make the refund(s) in question.
10.5 All reports of amounts due and invoices to be provided under Section 10.2 shall be in Euros or other currency or currencies specified by us (“Contract Currency“) and in local currency if required by applicable law or relevant taxation authorities. Any amount to be paid by us to you, which was stated to you in anything other than the Contract Currency prior to the agreement reached on such amount under Section 6.3, will be converted at the time and at the rate specified on the Developer Portal.
10.6 You shall pay us or our designated Affiliate, in respect of the rights granted under this Agreement, at the time and in the manner specified in the Guidelines or as otherwise notified to you: (i) where we determine that an Online Product will be made available to Users for free, 1 or such other amount notified to you during the Term, each time a User downloads that Online Product, and such payment shall be in substitution for any payment obligation arising under Section 10.2; and (ii) 15% of any direct or indirect revenue, income or other monetary value earned, recognised or otherwise derived from Online Products (other than from any sale of the Online Product itself) and Online Gameplay (whether or not supplied to Users for free or for a charge), including revenue sharing or advertising revenue, and such payment shall be in addition to any payment obligation arising under Section 10.2. You shall provide us with monthly reports of the gross revenues actually received by you (or otherwise credited to your benefit) in respect of which your payment obligations arise under Section 10.6(ii) and shall pay our invoices within 30 days of the invoice date.
10.7 When making payment to you under this Section 10, we shall be entitled to deduct any bank transfer or similar fees and to offset any sums owed to us pursuant to Section 10.4 or otherwise. Further, if any of the payments due to you under this Agreement are subject to withholding or similar taxes, the full amount of those taxes shall be for your account and we shall be entitled to withhold any such amounts from the payments due to you under this Agreement. Any amounts that you must pay under this Agreement are exclusive of all VAT and other taxes, duties, charges or assessments which we may have to collect or pay and for which you are solely responsible. All payments to be made by you under this Agreement shall be paid free and clear of any deductions or withholdings for, or on account of, tax, set-offs or counterclaims.
10.8 Without prejudice to our rights under Section 7, no payment shall be made to you under this Agreement where: (i) no amounts become due to you under Section 10.2 for a period of two consecutive years from the end of the month in which any amount became due to you under Section 10.2; or (ii) we are unable to remit a payment to your designated bank account or our designated payment service for a period of more than two consecutive years.
10.9 Payment terms under this Section 10 are subject to change in our discretion upon reasonable notice. You shall pay us interest on any amount which is overdue under this Agreement, immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of National Westminster Bank Plc.
11.1 We may together agree from time to time that we may include certain Online Products, and Online Gameplay, within a standard package of products and services offered over the PlayStation®Network for a fixed period to Users paying the relevant subscription fee (if any) (“Subscription“). All products to be included in a Subscription (“Subscription Product“) shall be included in the Subscription on the terms of this Section 11 and on any other terms relating to Subscriptions generally or as agreed between us.
11.2 Following any agreement pursuant to Section11.1 to include Online Products or Online Gameplay within a Subscription, you grant us a licence to supply Subscription Products throughout the Territory.
11.3 The rights granted to us under Section 11.2 above, in respect of each Subscription Product, shall commence on first supply of that Subscription Product and continue for a period of five years. Other than where a Subscription Product consists of a title trial, a download, a patch or a service, and unless otherwise agreed, we may only offer a Subscription Product to a User who has acquired a Subscription (“Subscriber“) for a maximum of 6 months during that 5-year period, save that we may include or remove that Subscription Product from a Subscription as many times as we choose. For the avoidance of doubt, such rights may be exercised by us for 6 months in respect of each country store of the PlayStation®Network.
11.4 A Subscriber shall be entitled to use each Subscription Product: (i) for so long as they remain a Subscriber, where the Subscription Product is made available to the Subscriber for free; (ii) in perpetuity, where the Subscription Product is made available to the Subscriber at a charge or where the Subscription Product consists of a demo or patch; (iii) for a period of one hour where the Subscription Product consists of a title trial; or (iii) for such other period to be agreed (pursuant to Section 11.1 above) between the parties for these or other Subscription Products.
11.5 We shall be entitled to include within a Subscription any demos or patches which you have published on the PlayStation®Network, other than as part of a Subscription. We may deliver all such demos and patches, and any other demo which the we agree to treat as a Subscription Product, to a Subscriber’s PlayStation Vita or other device authorised by us, at a time chosen by us, where the Subscriber has consented to such delivery.
11.6 In consideration of the rights granted to us under this Section 11, we shall pay you, in respect of each Subscription Product the sums agreed between us pursuant to Section 11.1 above. We shall have no obligation to pay you anything for the rights granted under this Section 11 in respect of Subscription Products which consist of a title trial, demo or patch. All sums payable under this Section 11 shall be payable instead of, and not in addition to, the sums payable under Section 10.2 unless we determine that the relevant Subscription Product may also be, or continue to be, published on the PlayStation®Network other than as part of a Subscription.
11.7 We may agree further or different terms in respect of Subscription Products (such as terms relating to delivery and launch dates, whether the Subscription Product must be launched at the same time as, or for a period prior to, launch on the PlayStation Store and platform exclusivity) pursuant Section 11.1 above.
11.8 The breach of any of the terms of this Section 11, including any terms agreed pursuant to Section 11.7, shall entitle us to recover any sums paid pursuant to Section 11.6 above without prejudice to any other rights or remedies which we may have in respect of such breach.
11.9 Save where this Section 11 provides otherwise, all of the rights and obligations under this Agreement which apply to Online Products shall apply to the Subscription Products, so that such rights and obligations shall be enforceable by each of us (as applicable) with respect to such products whether they are supplied as part of a Subscription, they are supplied other than as part of a Subscription or they are supplied as both.
12. REPRESENTATIONS AND WARRANTIES
12.1 We represent and warrant solely for your benefit that we have the right, power and authority to enter into this Agreement and to fully perform our obligations under it.
12.2 You represent and warrant, for the benefit of each Affiliate, throughout the Term that:
(i) your signatory to this Agreement is the legal age of majority in their country of residence, you are registered as a corporate entity, or you reside, in one of the countries specified by us in the Guidelines, you have an active bank account in one of those countries and the information you provide upon registration is full, accurate and complete and otherwise satisfactory to us.
(ii) have the right, power and authority, on your own behalf or on behalf of your employer or your company or organisation, to enter into this Agreement, to grant us the rights granted under it and to fully perform your obligations under it;
(iii) all Online Products will: (a) correspond with any written description provided by you to us or any Affiliate; (b) be of satisfactory quality; (c) be fully compatible with the PSM Compatible Devices as applicable and all permitted peripherals identified as compatible with such products; and (d) conform to all technical and other requirements under the Guidelines;
(iv) the Online Products, the Product Information, Advertising Materials and their contemplated disclosure or use by us, a User or any other party, pursuant to this Agreement, do not, shall not, and are not likely to infringe any person’s Intellectual Property Rights, and do not, shall not and are not likely to give rise to any obligation to pay any royalty, fee, compensation or other sum;
(v) there is no threatened or pending action, suit, claim or proceeding alleging that the use or possession by you of all or any part of the Online Products, Product Information, Advertising Materials or any name, designation or trademark used in conjunction with any of the Online Products, infringes or otherwise violates any Intellectual Property Right or other right or interest of any kind whatsoever anywhere in the world of any third party, or otherwise contesting any right, title or interest of you in or to the Online Products, Product Information, Advertising Materials or any name, designation or trademark used in conjunction with any of the same;
(vi) all Online Products and Product Information shall be free of defects or code, consisting of or including bugs, time bombs or viruses, and you shall not commit any act which could significantly disrupt or delay, or destroy, such products or information, the PSM Compatible Devices, the PlayStation®Network or any data;
(vii) none of the Online Products, the Product Information nor the Advertising Materials is defamatory, trade libellous, obscene, pornographic, discriminatory or blasphemous and contains no content which insults or offends the community or any substantial organised group thereof or that is inconsistent with the applicable age rating and none of those products or information, nor their contemplated use under this Agreement, will infringe the privacy rights of any person or otherwise violate any laws or regulations;
(viii) none of the Online Products, the Product Information, the Advertising Materials nor your policies and practices with respect to the development, marketing and publishing of Online Products shall reflect adversely upon the name, reputation or goodwill of us or any Affiliate; and
(ix) subject to Section 14.5, you are solely responsible for all costs, expenses, losses and liabilities incurred in connection with your use of the SCEE Materials, the exercise of your rights under this Agreement and the publishing of Online Products and all such publishing is entirely at your own risk.
You shall indemnify and hold each Affiliate harmless from and against any and all claims, demands, losses, liabilities, damages, expenses and costs, including reasonable fees for lawyers, expert witnesses and litigation costs, and costs incurred in the settlement or avoidance of any claim, in connection with or which result from: (i) a breach of this Agreement; (ii) any claim of infringement of a third party’s Intellectual Property Rights, or any consumer or product liability claim with respect to the Online Products or Product Information, including claims related to your support of unauthorised or unlicensed peripherals or software that are not part of the PlayStation Mobile Format specifications as set forth in the Guidelines; (iii) any claim of or in connection with any personal or bodily injury (including death or disability) or property damage arising out of, in whole or in part, the marketing, advertising, promotion, publishing, distribution, supply, sale or use of any of the Online Products (or portions of them) unless due directly and solely to our breach in performing any of the specific duties or providing any of the specific services required of us under this Agreement; or (iv) any civil or criminal investigations or actions relating to the marketing, advertising, promotion, publishing, distribution, supply or sale of Online Products (all subsections of this Section 13 collectively, “Publisher-Indemnified Claim(s)”). For the avoidance of doubt, we shall have the right to select our own counsel and control the defence and settlement of any Publisher-Indemnified Claim made by a third party against us.
14. LIMITATIONS OF LIABILITY
14.1 In no event shall any Affiliate, or the officers, directors, employees, agents, licensors or suppliers of any Affiliate, be liable for loss of revenue, loss of actual or prospective profits, loss of contracts, loss of anticipated savings, loss of business opportunity, reputation or goodwill or loss of, damage to or corruption of data (whether such loss or damage is direct, indirect, special, incidental or consequential), or for any indirect, special, incidental or consequential loss or damage of any kind, arising out of, relating to, or in connection with this Agreement or any collateral contract (including the breach of this Agreement by us), whether known, foreseen or foreseeable and whether in contract, tort (including negligence), product liability, under indemnity, or otherwise.
14.2 You shall have no remedy with respect to any representation made to you upon which you relied in entering into this Agreement and the Affiliates and the officers, directors, employees, agents, licensors or suppliers of any Affiliate shall have no liability to you other than under the express terms of this Agreement. In this Section 14.2, “representation” means any undertaking, promise, assurance, statement, representation, warranty or understanding, whether in writing or otherwise, of any person (whether a party to this Agreement or not), relating to the subject matter of this Agreement.
14.3 Except as expressly provided in Section 12.1, neither the Affiliates, nor the officers, directors, employees, agents or suppliers of any Affiliate, make, nor do you receive, any warranties (express, implied or statutory) regarding all or part of the SCEE Materials, the PSM Compatible Devices, the PlayStation®Network, Online Products or any services provided under this Agreement. Without limiting the generality of the foregoing, the Affiliates disclaim any warranties, conditions or other terms implied by any law (including as to merchantability, satisfactory quality or fitness for a particular purpose and warranties against infringement, and the equivalents under the laws of any jurisdiction) to the fullest extent permitted by applicable law. Further, without limiting the generality of the foregoing, the Affiliates disclaim any duty to determine or ascertain your authorisation, permission or licence to sell, supply or distribute any product or service.
14.4 In no event shall the Affiliates’ liability arising under, relating to, or in connection with this Agreement, or any collateral contract, exceed an amount equal to 50,000 for each year of the Term in which you have published an Online Product pursuant to this Agreement prior to the date of the first occurrence of the event or circumstances giving rise to the claimed liability.
14.5 Nothing in this Agreement shall exclude or limit the Affiliates’ liability in relation to claims arising from deceit, fraud, the injury or death of any person resulting from their proven negligence or any liability of theirs which may not be excluded or limited under applicable law.
15. SCEE CONFIDENTIAL INFORMATION
15.1 The term for the protection of the SCEE Confidential Information shall commence on the Effective Date and shall continue in full force and effect for as long as any of the SCEE Confidential Information continues to be maintained as confidential and proprietary by us or any Affiliate.
15.2 You shall:
(i) not disclose SCEE Confidential Information to any person, other than to your employees, directors or officers whose duties justify a “need-to-know” and who have executed a confidentiality agreement in which they have agreed not to disclose and to protect and maintain the confidentiality of all confidential information and materials inclusive of those of third parties which may be disclosed to them or to which they may have access during the course of their duties. You shall advise all employees, directors or officers who obtain access to or copies of the SCEE Confidential Information of the confidential or proprietary nature of the SCEE Confidential Information, and you shall be responsible for any breach of this Agreement by all such persons;
(ii) hold all of the SCEE Confidential Information in confidence and take all measures necessary to preserve the confidentiality of the SCEE Confidential Information in order to avoid disclosure, publication or dissemination, using as high a degree of care and scrutiny, but at least reasonable care, as is consistent with the protection of valuable trade secrets by companies in high technology industries;
(iii) at our request, return promptly to us any and all portions of the SCEE Confidential Information, together with all copies thereof; and
(iv) not use, copy, reproduce, modify, create derivative works from, sublicense, distribute, or otherwise disseminate the SCEE Confidential Information, or any portion thereof, except as expressly authorised, nor shall you remove any proprietary legend set forth on or contained within any of the SCEE Confidential Information.
15.3 The restrictions set out in Section 15.2 above shall not apply to any portion of the SCEE Confidential Information which:
(i) was previously known by you without restriction on disclosure or use, as proven by written documentation;
(ii) is or legitimately becomes part of the public domain through no fault of your own or any of your employees, directors or officers;
(iii) is independently developed by your employees or consultants who have not had access to or otherwise used the SCEE Confidential Information (or any portion thereof), as proven by written documentation;
(iv) is required to be disclosed by court, administrative or governmental order, provided that you must use all reasonable efforts prior to issuance of any such order to maintain the confidentiality of the SCEE Confidential Information, including asserting in any action or investigation the restrictions set forth in this Agreement, and, immediately after receiving notice of any such action, investigation, or threatened action or investigation, you must notify us of such action, investigation, or threatened action or investigation, unless you are ordered by a court not to so notify; or
(v) is approved for release by our written authorisation.
16. INFORMATION SUBMITTED BY YOU
16.1 We will take reasonable steps to protect the confidentiality of any information provided in any form by you to us or any Affiliate during the Term pursuant to this Agreement, including information concerning Online Products, save to the extent that such information falls within the exceptions listed in Section 15.3 (all references to “you” and “your” being replaced by references to “us” and “our” and vice versa and references to “SCEE Confidential Information” being replaced with “information provided by you to us”). We have the right to share your information with third parties who have a need to know for the purposes of this Agreement. Neither we nor any Affiliate shall have any obligation to return or destroy any physical materials provided by you pursuant to this Agreement.
17. TERM AND TERMINATION
17.1 This Agreement shall commence on the Effective Date and shall continue indefinitely unless terminated at any time in accordance with the remaining provisions of this Section 17.
17.2 We shall have the right to terminate this Agreement immediately, on written notice to you, upon the occurrence of any of the following:
17.2.1 If you are in material breach of any of your obligations under this Agreement or under any other agreement entered into between us or any Affiliate, on the one hand, and you on the other hand, which breach, if capable of remedy, shall not have been cured in full within 30 days following notice from SCEE (or the applicable Affiliate as the case may be) specifying and requiring the cure of such breach, or any repetition of a prior material breach of any such obligation, whether or not capable of remedy (and, for the avoidance of doubt, the failure to pay the Annual Licence Fee a breach of Section 12.2(i), and a breach of Section 18.7 with respect to any anti-bribery or anti-corruption laws, shall each be deemed to be a material breach of this Agreement not capable of remedy);
17.2.2 If you (a) are unable to pay its debts when due; (b) make an assignment for the benefit of any of your creditors; (c) file or have filed against you a petition, or an order of bankruptcy or insolvency is made, under the bankruptcy or insolvency laws of any jurisdiction (and such petition is not discharged within 60 days) or become or are adjudicated bankrupt or insolvent; (d) are the subject of an order for, or apply for or notices your intent to apply for, the appointment of an administrator, receiver, administrative receiver, manager, liquidator, trustee or similar officer to be appointed over any of your business or property; (e) cease to do business or enter into liquidation; or (f) take or suffer any similar or analogous action in any jurisdiction as a consequence of debt;
17.2.3 If a controlling interest in you or in an entity which directly or indirectly has a controlling interest in you is transferred to a party that (a) is in breach of any agreement with any Affiliate; (b) directly or indirectly holds or acquires a controlling interest in a third party which designs, develops any of the core components for an interactive device or product which is directly or indirectly competitive with any of the PSM Compatible Devices, or itself develops any product that is directly or indirectly competitive with the PSM Compatible Devices; or (c) is in litigation or in an adversarial administrative proceeding with any Affiliate concerning the SCEE Confidential Information or any SCEE Intellectual Property Rights, including challenging the validity of any SCEE Intellectual Property Rights;
17.2.4 If you or any entity that directly or indirectly has a controlling interest in you (a) enter into a business relationship with a third party related to the design or development of any core components for an interactive device or product which is directly or indirectly competitive with the PSM Compatible Devices; or (b) acquire an interest in or otherwise form a strategic business relationship with any third party which has developed or owns or acquires intellectual property rights in any such device or product;
17.2.5 If you or any of your affiliates initiates any legal or administrative action against any Affiliate or challenges the validity of any SCEE Intellectual Property Rights;
17.2.6 If you or any of its officers, employees or shareholders engage in “hacking” of any software for any PlayStation or PSM Compatible Device format or in activities which facilitate the same by any third party;
17.2.7 Where you or any of your directors, officers or shareholders, in their personal capacity, has been, is or becomes, involved in any dispute with any Affiliate, including being the subject of any allegation of fraud or breach or infringement of the legal rights of any Affiliate (without prejudice to the right to challenge the validity of any SCEE Intellectual Property Rights);
17.2.8 The PlayStation®Network ceases to offer or distribute PlayStation Mobile Format products or services.
As used in this Section 17.2, “controlling interest” means, with respect to any form of entity, sufficient power to control the decisions of such entity. You shall immediately notify us in writing in the event that any of the events or circumstances specified in this Section 17.2 occur. In the event of termination under 17.2.6, we shall have the right to terminate any other agreements entered into between us.
17.3 In addition to our rights under Section 17.2, and without prejudice to our rights under this Agreement, we shall be entitled, at our option: (i) to terminate or suspend, with respect to a particular Online Product, the licences and related rights granted to you under this Agreement immediately on written notice to you, in the event that we reasonably believe that any Online Product could cause damage to the PlayStation®Network or to any property, may create liability for us or gives rise to a breach of any of your warranties under Section 12.2; (ii) for any reason in our discretion, to suspend or cancel the supply of any Online Product to a particular User without liability to you; and (iii) to suspend this Agreement if we reasonably suspect that you may have breached Section 18.7 with respect to anti-bribery or anti-corruption laws or may have caused us to violate any such laws.
17.4 In the event that this Agreement is terminated or suspended under Sections 17.2 or 17.3: (i) we shall have the right to continue to exercise our rights under Section 7 in respect of Online Products already available on the PlayStation®Network, in accordance with the terms of this Agreement and, in the case of termination, we shall be entitled to do so for a period of one year from the date of termination; (ii) no portion of any payments of any kind whatsoever previously provided by you under this Agreement shall be owed or be repayable or refunded to you; and (iii) neither of us shall be liable to the other for any damages (whether direct, indirect, consequential or incidental, and including any expenditures, loss of profits or prospective profits) sustained or arising out of or alleged to have been sustained or to have arisen out of such termination or suspension. The termination or suspension of this Agreement shall be without prejudice to any rights or remedies which either of us may otherwise have against the other, and shall not excuse either of us from liability with respect to any events occurring prior to the effective date of termination or suspension.
18. MISCELLANEOUS PROVISIONS
18.1 Notices. All notices or other communications required under this Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first class post, recorded delivery or commercial courier, to the party required to receive it. All such notices shall be sent to us at the address stated above (marked for the attention of the Company Secretary) and to you at the address specified by you to us or any Affiliate, or to such other address as each of us may notify to the other in writing subsequently. Any such notice shall be effective upon the date of actual receipt, as confirmed by the receiving party.
18.2 Audit Provisions. You shall keep full, complete, and accurate books of accounts and records covering all transactions relating to this Agreement and shall preserve such books of accounts and records, for a period of 24 months after termination of this Agreement. In the event that we reasonably believe that the information provided by you with respect to any Online Product is not accurate, we shall be entitled to request additional documentation from you to support the information provided for such Online Product. In addition, during the Term and for a period of two years thereafter and upon reasonable prior written notice to you, at our expense, an independent certified accountant appointed by us or (at our option) an appropriately qualified employee of an Affiliate shall be given access to, and the right to inspect, audit, and make copies and summaries of and take extracts from, such portions of all your books and records (including those of your affiliates or held at your branch offices) as pertain to the Online Products and any payments due or credits received under this Agreement. In the event that such inspection reveals any under-reporting of any payment due to us: (i) you shall immediately pay us such amount; and (ii) where such audit reveals that you have under-reported any payment due to us by five percent or more for the relevant audit period, you shall also reimburse us for all reasonable audit costs and any and all collection costs to recover any unpaid amounts.
18.3 Force Majeure. Neither party shall be liable for any loss or damage or be deemed to be in breach of this Agreement if its failure to perform or failure to cure the breach of any of its obligations under this Agreement results from any event or circumstance beyond its reasonable control.
18.4 No Agency, Partnership or Joint Venture. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent or employee of the other, nor authorise any party to make or enter into any commitments for or on behalf of the other party.
18.5 Assignment. Except as provided in this Agreement, you may not assign, sublicense, subcontract, encumber or otherwise transfer this Agreement or any of your rights under it, nor delegate or otherwise transfer any of your obligations under it, to any third party without our prior written consent. We shall have the right to assign, sublicense, subcontract or otherwise transfer any and all of our rights and obligations under this Agreement to any Affiliate or to any company in the Sony group of companies, and each such Affiliate or company may further sublicense or subcontract any such rights and obligations to any Affiliate or to any company in the Sony group of companies. Provided we consent, Sony Computer Entertainment Inc any Sony Computer Entertainment America LLC may directly enforce the terms of this Agreement.
18.6 Non-solicitation. You may not, by yourself, or by your officers, employees or agents, or indirectly, during the Term or for 12 months after termination of this Agreement, induce or seek to induce, on an individually-targeted basis, the employment or the engagement of the services of, any of our or our Affiliates’ employees, whose services are (a) specifically engaged in product development or directly related functions or (b) otherwise reasonably deemed by his or her employer to be of material importance to the protection of its legitimate business interests, and (c) with whom you have had contact or dealings during the Term.
18.7 Compliance with Applicable Laws. You shall at all times comply with all applicable laws and regulations, including anti-bribery, anti-corruption and data privacy laws, relating to or in any way affecting this Agreement, your performance of this Agreement and Online Products, including negotiating or obtaining, at your own expense, any approval, licence or permit required in the performance of your obligations. You represent and warrant that each Online Product may be exported to each country of the Territory in accordance with applicable laws, and you shall not export or re-export, including deemed exports, any materials or products provided and/or produced pursuant to this Agreement, to any country specified in any applicable laws and regulations as a prohibited destination, without first obtaining the relevant government’s approval.
18.8 Remedies. Except as provided in this Agreement, either party’s election of any remedies provided for in this Agreement shall not be exclusive of any other remedies at law or equity, and all such remedies shall be deemed to be cumulative.
18.9 Severability. If any provision of this Agreement or portion of it is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, such provision or portion shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall not be affected.
18.10 Sections Surviving Termination. The following Sections shall survive the termination of this Agreement for any reason: 7.4, 8, 9, 10, 12, 13, 14, 15, 16, 17.4 and 18 and any terms that are expressly designated as surviving termination.
18.11 Waiver. No failure or delay by either party in exercising any right or remedy under this Agreement shall operate as a waiver of any such right or remedy. Any full or partial waiver by either party of any right or remedy under this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of such right or remedy in respect of any future event or circumstance.
18.12 Amendment. Except as otherwise provided in this Agreement, no modification or amendment of any provision of this Agreement shall be effective unless in writing and signed by both of the parties.
18.13 Interpretation. The headings in this Agreement are intended purely for reference and shall not by themselves determine the construction or interpretation of this Agreement or any portion of it. Any reference to Section or Schedule numbers are to the Sections or Schedules of this Agreement. Any reference to persons includes natural persons as well as organisations, including firms, partnerships, companies and corporations. Any phrase introduced by the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the category preceding those terms.
18.14 Integration. This Agreement, together with the Guidelines, constitutes the entire agreement between us and supersedes all prior or contemporaneous agreements, proposals, representations, understandings and communications between us, whether oral or written, with respect to the subject matter of this Agreement. You are not relying upon any statement, representation, warranty or understanding, whether negligently or innocently made, of any person other than as expressly set out in this Agreement.
18.15 Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (whether contractual or non-contractual) shall be governed by and interpreted in accordance with English Law. Both parties irrevocably agree for the exclusive benefit of Sony Computer Entertainment Europe Ltd that the English Courts shall have jurisdiction to adjudicate any proceeding, suit or action (whether contractual or non-contractual) arising out of or in connection with this Agreement. However, nothing contained in this Section 18.15 shall limit Sony Computer Entertainment Europe Ltd’s right to take any such proceeding, suit or action against you in any other court of competent jurisdiction, nor shall the taking of any such proceeding, suit or action in one or more jurisdictions preclude the taking of any other such proceeding, suit or action in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction. You shall have the right to take any such proceeding, suit or action against us only in the English Courts.
THIS AGREEMENT HAS BEEN ENTERED INTO FROM THE MOMENT YOU CLICK ON THE “AGREE” BUTTON BELOW
SONY COMPUTER ENTERTAINMENT EUROPE LIMITED
“Advertising Materials” means any advertising, marketing, merchandising, promotional, contest-related, public relations (including press releases), display, point of sale or website materials regarding or relating to Online Products, including any advertisements in which the PSM Compatible Devices or any of our Intellectual Property are displayed, referred to or used.
“Affiliate” means, as applicable, Sony Computer Entertainment America Inc., Sony Computer Entertainment Inc. and Sony Computer Entertainment Europe Ltd., any subsidiary of the foregoing, or any other entity as may be established from time to time and becomes a part of the Sony Computer Entertainment group.
“Annual License Fee” means the amount payable by you annually as specified in the Guidelines or via the PlayStation®Network.. We reserve the right to change the amount from time to time by providing prior notice via the Guidelines or via the PlayStation®Network.
“Developer Portal” means the website for PlayStation Mobile Format licensed publishers providing access to SCEE Materials, the Guidelines, and other information related to the PlayStation Mobile Format, located at a URL designated by us from time to time.
“Effective Date” means the date that your authorised representative accepts this Agreement’s terms by clicking the “AGREE” button.
“Guidelines” means any guidelines or specifications of us or our Affiliates with respect to the development, marketing, advertising, promotion, publishing, distribution, supply and sale of Online Products (including any specifications relating specifically to products to be distributed for the PSM Compatible Devices), the display of our or Affiliate’s trademarks in any Online Products and related Advertising Materials, the protection of any of the SCEE Intellectual Property Rights or the adherence to anti-bribery policies, which may be set forth in the Technical Requirements Checklist, Specifications and Procedures, including Objectionable Content Criteria, Advertising Guidelines or in any other documentation provided to you by us, in physical form, on the Developer Portal, on another website or by some other means. Guidelines shall be comparable to the guidelines and specifications applied by us or our Affiliates to our own PlayStation Mobile Format products. All Guidelines may be modified, supplemented or amended by us or any Affiliate from time to time upon notice to Publisher. Guidelines are incorporated into and form a part of this Agreement.
“Intellectual Property Rights” means rights in or related to patents, inventions, designs, copyrights, databases, trademarks, service marks, trade names, trade dress, mask works, utility models, trade secrets, technical information, know-how, and the equivalents of the foregoing under the laws of any jurisdiction and any other intellectual property rights recognised anywhere in the world (including all registrations, applications to register and rights to apply for registration of same) for their full term including all renewals and extensions.
“Licensed Developer” means an entity that has signed a Licensed Developer Agreement with any Affiliate.
“Licensed Developer Agreement” means a valid and current licence agreement authorising the development of PlayStation Mobile Format software or content, fully executed between a Licensed Developer and an Affiliate.
“Online Gameplay” means the capability to operate and interact with Online Products used on any of the PSM Compatible Devices that is connected to the internet or any other network and which may allow an end user to participate in a game, gameplay or communication with another end user (or other end users) across the internet or any other network, or which permits users to upload content they have created via Online Products or to access other online features such as friends lists or trophy and ranking systems.
“Online Products” means Publisher Software or any other software or content (created without reference to or use of SCEE Intellectual Property Rights or the SCEE Materials), together with, where relevant, any of the SCEE Materials which are intended to be combined with Publisher Software, in final form (which, for software, means object code) which: (i) may be accessed, viewed or played on or via the PSM Compatible Devices; (ii) has the ability to communicate with, or be used by, the software resident in the PSM Compatible Devices or an application used by the PSM Compatible Devices (excluding any websites accessed via the browser of any PSM Compatible Device), or which otherwise uses any services or features of the PlayStation®Network; (iii) is distributed electronically (including by wireless distribution) to end users; and (iv) is developed in accordance with the specific criteria in the Guidelines applicable to products to be distributed for the PSM Compatible Devices. Online Products shall be deemed to include: (a) additional content for use with an Online Product including enhancements, improvements, additions, patches, updates, data and other content whether such content is game or non-game content (such as e-books, photos and maps); (b) themes, wallpapers, demos, videos and other content related to Online Products; and (c) online services which meet the relevant criteria of sub-paragraphs (i)-(iv) of this paragraph.
“PlayStation Mobile Format” means a format for software applications and content, developed by an Affiliate(s), which enables them to run on PSM Compatible Devices.
“PlayStation®Network” means all or part of the global online platform, currently known as “PlayStation®Network”, owned or operated by the Affiliates or Sony group companies, which offers a series of services and features, including the facility to deliver content and services, commerce, community and user authentication (and which includes the PlayStation®Store) via the PSM Compatible Devices and other devices, and including new services and features developed and offered via the PlayStation®Network after the date of this Agreement, and other similar platforms owned or operated by the Affiliates or Sony group companies, launched after the date of this Agreement.
“Product Information” means extracts of or reference to Online Products, your name, any trademarks, service marks, trade dress, logos, icons or other indicia used on, in or in connection with Online Products, attribution lines and any information owned or licensed by you relating to any of the Online Products, including hints and tips, artwork and videotaped interviews, as may be further specified in the Guidelines.
“PSM Compatible Devices” means any mobile, portable or other device compatible with the PlayStation Mobile Format (whether by means of emulation or otherwise) developed or sold by an Affiliate or other Sony group company, or those developed or sold by third parties under certification by an Affiliate or other Sony group company.
“Publisher Software” means any software or content including incorporated audio and visual material, developed by you (or by a Licensed Developer) under a Licensed Developer Agreement, which does not include any of the SCEE Materials.
“SCEE Confidential Information” means: (i) the SCEE Materials, the Guidelines and this Agreement, including all exhibits and schedules attached to any of them and all information related to these items; (ii) other information, documents and materials developed, owned, licensed or under the control of us or any Affiliate, including all processes, data, hardware, software, inventions, trade secrets, ideas, creations, improvements, designs, discoveries, developments, research and know-how; (iii) information, documents and other materials regarding our or any Affiliate’s finances, business and business methods and marketing, technical, development and production plans; and (iv) third-party information and documents licensed to or under the control of us or any Affiliate. The SCEE Confidential Information consists of information in any medium, whether oral, printed, in machine-readable form or otherwise, provided to you before or during the Term, including information subsequently reduced to tangible or written form. In addition, the existence of a relationship between us shall be deemed to be SCEE Confidential Information unless otherwise agreed in writing by us or until publicly announced by us or any Affiliate.
“SCEE Intellectual Property Rights” means SCEE’s or any Affiliate’s worldwide Intellectual Property Rights, current or future, that relate to the SCEE Materials, the PSM Compatible Devices, the PlayStation®Network, the design, development and delivery of Online Products and any SCEE Confidential Information.
“SCEE Materials” means any data, object code, source code, firmware, documentation (or any part(s) of any of them), contained within Online Products, used in their development or otherwise provided to you by any Affiliate at their discretion, or information relating to the PlayStation Mobile Format, PSM Compatible Devices or the development or delivery of entertainment products or services compatible with the PSM Compatible Devices provided to you by an Affiliate at their discretion.
“Term” means the period specified in Section 17.1.
“Territory” means all of the countries worldwide in which SCEE or an Affiliate makes the PlayStation®Network available from time to time, unless otherwise specified in the Guidelines from time to time.
“User” means an individual who uses the PlayStation®Network.
“We”, “Us” means Sony Computer Entertainment Europe Limited.
“You” means the person(s) exercising the rights under this Agreement and, if you are entering into this Agreement on behalf of your company or other organisation, “you” or “your” refers to that company or organisation as well where the context requires.
1. You shall maintain servers hosting Online Gameplay for the periods specified in the Guidelines. You or, at our option, we or our Affiliate shall provide notice to Users in a clear and conspicuous manner via one of the methods listed in paragraph 3 below of any permanent shutdown to a server hosting or supporting Online Gameplay. The periods of notice of such shutdown shall be specified in the Guidelines.
2. You shall provide all User support for Online Gameplay in an efficient manner and in accordance with the Guidelines, and we expressly disclaim any obligations or liability to provide such support.
3. Online Gameplay must be offered and operated in a responsible manner with particular regard to the protection of children and privacy and you shall monitor and appropriately supervise the use of your Online Products offering Online Gameplay. Where collection of personal data is permitted by SCEE, you must inform all Users accessing Online Products if any personally identifying information will be collected, how it will be collected, and how it will be used. Where you are required by this Agreement or by law to have any written online terms, such as those enumerating user, privacy, moderation or other policies or age rating (collectively, “Online Terms”), these must be displayed prior to allowing any Users to use Online Products or Online Gameplay for the first time and must be either be coded into the applicable Online Product or available on the server hosting it in such a way that a User must agree to them prior to access. Online Terms must comply with the Guidelines. We reserve the right to review your Online Terms, but shall have no liability for the content or performance of your Online Terms.
4. You must comply with: (i) all legal requirements, or the requirements stipulated under any voluntary system (designated by us), relating to the labelling of websites or gateways providing access to Online Gameplay and the conduct of Online Gameplay; and (ii) our policies in relation to the protection of children engaging in Online Gameplay.
5. You shall bear exclusively all responsibility and liability for any features or capability of Online Products and Online Gameplay, including Online Gameplay between territories using different television standards, whether PAL, NTSC or otherwise.
6. Where you process any personal data of Users on behalf of us or any Affiliate, you shall do so only in accordance with any instructions given by us or our Affiliates from time to time, and appropriate technical and organisational measures shall be taken by you against unauthorised or unlawful processing of such personal data and against accidental loss or destruction of, or damage to, such personal data.
7. We shall have the right to suspend Online Gameplay or require you to do so immediately on notice where you are in breach of this Schedule 2 or any Guidelines concerning the provision and conduct of Online Gameplay including any Guidelines relating to virtual currency.