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License Agreement
LICENSE AGREEMENT
LICENSE AGREEMENT IMPORTANT: BEFORE DOWNLOADING THE SOFTWARE FROM THIS WEBSITE, PLEASE READ THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY AND CLICK THE “I AGREE” BUTTON ON THIS WEBSITE. BY CLICKING THE “I AGREE” BUTTON ON THIS WEBSITE, DOWNLOADING, COPYING OR OTHERWISE USING THE SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE. This AGREEMENT is a legal agreement between (i) you and any entity you represent (“you”) and (ii) Sony Electronics Inc. (“SONY”). This AGREEMENT governs your rights and obligations regarding the Camera Remote SDK of SONY and/or its third party licensors (including SONY’s affiliates) and their respective affiliates (collectively, the “THIRD-PARTY SUPPLIERS”) made available to you by SONY, through this website or other means, together with any updates/upgrades provided by SONY, any printed, on-line or other electronic documentation for such software, and any data files created by operation of such software (collectively, the “SOFTWARE”). Notwithstanding the foregoing, any software in the SOFTWARE having a separate end user license agreement (including, but not limited to, GNU General Public license and Lesser/Library General Public License) shall be covered by such applicable separate end user license agreement in lieu of the terms of this AGREEMENT to the extent required by such separate end user license agreement (“EXCLUDED SOFTWARE”). SOFTWARE LICENSE The SOFTWARE is licensed, not sold. The SOFTWARE is protected by copyright and other intellectual property laws and international treaties. COPYRIGHT All right and title in and to the SOFTWARE (including, but not limited to, any images, photographs, animation, video, audio, music, text, “applets” and other content incorporated into the SOFTWARE) is owned by SONY or one or more of the THIRD-PARTY SUPPLIERS. GRANT OF LICENSE SONY grants you, solely in accordance with this AGREEMENT and the usage as intended in the relevant instructions and directions for use made available to you by SONY (“USAGE INSTRUCTIONS”), a limited, non-exclusive, and non-transferable license to: (i) install and use the SOFTWARE on your PC, solely for the purposes of developing and use an application software that enables the user to remotely control or use camera products or the peripheral products such as lens and flash products all of which are developed or sold by SONY (collectively, “DEVICE” and such application software shall be hereinafter referred to as “APPLICATION SOFTWARE”); (ii) incorporate a binary form of the library file in the SOFTWARE into the APPLICATION SOFTWARE in an inseparable way and distribute the APPLICATION SOFTWARE to any third parties; and (iii) grant the third parties to whom you distribute the APPLICATION SOFTWARE subject to the subsection (ii) immediately set forth above (“END-USERS”) a license to copy and use the APPLICATION SOFTWARE, solely for the purposes to remotely control or use the DEVICE in a normal usage. SONY and the THIRD-PARTY SUPPLIERS expressly reserve all rights, title and interest (including, but not limited to, all intellectual property rights) in and to the SOFTWARE that this AGREEMENT does not specifically grant to you. REQUIREMENTS AND LIMITATIONS You may not attempt to derive source code, modify, reverse engineer, decompile, or disassemble any of the SOFTWARE, whether in whole or in part, or create any derivative works from or of the SOFTWARE unless such derivative works are intentionally facilitated by the SOFTWARE. You may not modify or tamper with any digital rights management functionality of the SOFTWARE. You may not bypass, modify, defeat or circumvent any of the functions or protections of the SOFTWARE or any mechanisms operatively linked to the SOFTWARE. You may not separate any individual component of the SOFTWARE unless expressly authorized to do so by SONY in this AGREEMENT or any USAGE INSTRUCTIONS. You may not remove, alter, cover or deface any trademarks or notices on the SOFTWARE. You may not share, distribute, rent, lease, sublicense, assign, transfer or sell the SOFTWARE unless expressly authorized to do so by SONY in this AGREEMENT or any USAGE INSTRUCTIONS. You may not use the SOFTWARE in any manner non-compliant with the USAGE INSTRUCTIONS. The software, network services or other products other than SOFTWARE upon which the SOFTWARE’S performance depends might be interrupted or discontinued at the discretion of the suppliers (software suppliers, service suppliers, or SONY). SONY and such suppliers do not warrant that the SOFTWARE, network services, contents or other products will continue to be available, or will operate without interruption or modification. You shall not, nor shall you instruct or permit, procure, enable or request any third party (including the END-USERS, third party personnel or other personnel, staff or contractors) to, take any action designed or intended to: (i) use the SOFTWARE (or any part thereof) in any manner or for any purpose that is inconsistent with this AGREEMENT; (ii) introduce to the SOFTWARE any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry) or any other equivalent code, files, scripts, agents, programs, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the SOFTWARE or any device or system owned or controlled by you or any third party, or which otherwise may damage or destroy any data or file (“Malicious Code”); (iii) interfere with the proper working of the SOFTWARE; (iv) circumvent, disable, or interfere with security-related features of the SOFTWARE or features that prevent or restrict use, access to, or copying the SOFTWARE, or that enforce limitations on use of the SOFTWARE; or (v) impose (or which may impose, in your sole discretion) an unreasonable or disproportionately large load on the SOFTWARE. Please also note that you shall: (a) explain to and obtain a consent from the END-USERS, before licensing the END-USERS to copy or use the APPLICATION SOFTWARE, that once a DEVICE is used or controlled through the APPLICATION SOFTWARE, the DEVICE will be out of such manufacturer-warranty as separately specified by SONY with respect to the DEVICE; (b) not represent to the END-USERS or in any other way cause the END-USERS to believe that SONY or SONY’s affiliate(s) is the owner, licensor, creator or developer of the APPLICATION SOFTWARE; and (c) provide at your costs and responsibility any and all customer support to the END USERS for the APPLICATION SOFTWARE, and not represent to the END-USERS or in any other way cause the END-USERS to believe that SONY or SONY’s affiliate(s) would provide such support. EXCLUDED SOFTWARE AND OPEN SOURCE COMPONENTS Notwithstanding the foregoing limited license grant, you acknowledge that the SOFTWARE may include EXCLUDED SOFTWARE. Certain EXCLUDED SOFTWARE may be covered by open source software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including but not limited to any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. If and to the extent disclosure is required, please visit oss.sony.net/Products/Linux or other SONY-designated web site for a list of applicable OPEN SOURCE COMPONENTS included in the SOFTWARE from time to time, and the applicable terms and conditions governing its use. Such terms and conditions may be changed by the applicable third party at any time without liability to you. To the extent required by the licenses covering EXCLUDED SOFTWARE, the terms of such licenses will apply in lieu of the terms of this AGREEMENT. To the extent the terms of the licenses applicable to EXCLUDED SOFTWARE prohibit any of the restrictions in this AGREEMENT with respect to such EXCLUDED SOFTWARE, such restrictions will not apply to such EXCLUDED SOFTWARE. To the extent the terms of the licenses applicable to Open Source Components require SONY to make an offer to provide source code in connection with the SOFTWARE, such offer is hereby made. NETWORK SERVICE PLEASE ALSO NOTE THAT THE APPLICATION SOFTWARE DEVELOPED BY INCORPORATING THE SOFTWARE MAY BE DESIGNED TO BE USED WITH NETWORK SERVICES (“NETWORK SERVICE”). USE OF THE NETWORK SERVICE IS SUBJECT TO THE TERMS OF THE NETWORK SERVICE. IF YOU DECLINE TO ACCEPT THOSE TERMS, YOUR USE OF THE APPLICATION SOFTWARE WILL BE LIMITED. You acknowledge and agree that certain NETWORK SERVICE may be provided by third parties over which SONY has no control. WHERE NETWORK SERVICE IS NOT UNDER SONY’S CONTROL, SONY SHALL NOT BE LIABLE IN RESPECT OF ANY DAMAGES (OR OTHER LIABILITY) RELATED TO SUCH NETWORK SERVICE. USE OF THE NETWORK SERVICE REQUIRES AN INTERNET CONNECTION. THE NETWORK SERVICE MAY BE DISCONTINUED AT ANY TIME. INTERNET CONNECTIVITY AND THIRD PARTY SERVICES You acknowledge and agree that access to certain APPLICATION SOFTWARE developed by incorporating the SOFTWARE features may require an Internet connection for which you are solely responsible. Without limiting the generality of the foregoing, you are solely responsible for (i) payment of any third party fees associated with your Internet connection, including but not limited to Internet service provider or airtime charges and (ii) establishment and maintenance of secured Internet connection. Operation of the APPLICATION SOFTWARE may be limited or restricted depending on the capabilities, bandwidth or technical limitations of your Internet connection and service. The provision, quality and security of such Internet connectivity are the sole responsibility of you and the third party providing such service. You are solely responsible in the event any Malicious Code introduced in the APPLICATION SOFTWARE because of or through, your internet connections. EXPORT AND OTHER REGULATIONS You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities, and not to transfer, or authorize the transfer, of the SOFTWARE to a prohibited country or otherwise in violation of any such restrictions or regulations. U.S. GOVERNMENT RESTRICTED RIGHTS Use, duplication, or disclosure by the United States Government is subject to restriction as set forth in subparagraph (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. § 52.227-19, as applicable. The manufacturer solely for purposes of this section is Sony Electronics Inc., 16530 Via Esprillo, San Diego, CA 92127. HIGH RISK ACTIVITIES The SOFTWARE is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the SOFTWARE could lead to death, personal injury, or severe physical or environmental damage (“HIGH RISK ACTIVITIES”). SONY, each of the THIRD-PARTY SUPPLIERS, and each of their respective affiliates specifically disclaim any express or implied warranty, duty or condition of fitness for HIGH RISK ACTIVITIES. PROHIBITED USE OF THE SOFTWARE You hereby acknowledge and agree that SONY, its parent, subsidiaries and affiliates, are strictly committed not to engage in any transactions involving Arms. “Arms” refer to products, software, technologies or services designed for combat attack (i.e., killing or destruction) or that could be diverted and employed for combat attack, including parts, accessories and/or software specially designed for any such products, software, technologies or services. Arms include, but are not limited to, (i) any types of guns (including hunting guns and sport guns) and any telescopic sights for any such guns, (ii) tanks, battleships, submarines and fighters (including attack helicopters), (iii) explosives, (iv) biological or chemical weapons, (v) missiles, (vi) unmanned aerial vehicles equipped with offensive weapons (including dissemination feature of biological or chemical weapons), and (vii) devices or programs specially designed for guidance or attitude control of the items described above. You represent, warrant, and covenant that you will not use the SOFTWARE and the DEVICES: (i) to design, develop, manufacture, customize, use, install, inspect or store Arms; (ii) to transport explosives or chemical or biological weapons and other harmful items; and/or (iii) for military activities such as intelligence, surveillance and reconnaissance. You represent, warrant, and covenant that you will not resell or otherwise transfer the APPLICATION SOFTWARE to others who intend to use the APPLICATION SOFTWARE: (i) to design, develop, manufacture, customize, use, install, inspect or store Arms; (ii) to transport explosives or chemical or biological weapons and other harmful items; and/or (iii) for military activities such as intelligence, surveillance and reconnaissance. You shall explain to and obtain a consent from the END-USERS about the prohibited uses of the SOFTWARE, the APPLICATION SOFTWARE and the DEVICES as set forth in this Section before licensing the END-USERS to copy or use the APPLICATION SOFTWARE. DISCLAIMER OF WARRANTIES ON SOFTWARE You acknowledge and agree that use of the SOFTWARE is at your sole risk and that you are responsible for use of the SOFTWARE. The SOFTWARE is provided “AS IS,” without warranty, duty or condition of any kind. SONY AND EACH OF THE THIRD-PARTY SUPPLIERS (for purposes of this Section, SONY and each of the THIRD-PARTY SUPPLIERS shall be collectively referred to as “SONY”) EXPRESSLY DISCLAIM ALL WARRANTIES, DUTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SONY DOES NOT WARRANT OR MAKE ANY CONDITIONS OR REPRESENTATIONS (A) THAT THE FUNCTIONS CONTAINED IN ANY OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THEY WILL BE UPDATED, (B) THAT THE OPERATION OF ANY OF THE SOFTWARE WILL BE CORRECT OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED, (C) THAT THE SOFTWARE WILL NOT DAMAGE ANY OTHER SOFTWARE, HARDWARE OR DATA, (D) THAT ANY SOFTWARE, NETWORK SERVICES (INCLUDING THE INTERNET) OR PRODUCTS (OTHER THAN THE SOFTWARE) UPON WHICH THE SOFTWARE’S PERFORMANCE OR APPLICATION SOFTWARE’S PERFORMANCE DEPENDS WILL CONTINUE TO BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR UNMODIFIED, (E) THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SOFTWARE IS USED (INCLUDING THE DEVICE) WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK AND (F) REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. SONY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SONY OR AN AUTHORIZED REPRESENTATIVE OF SONY SHALL CREATE A WARRANTY, DUTY OR CONDITION OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. LIMITATION OF LIABILITY SONY AND EACH OF THE THIRD-PARTY SUPPLIERS (for purposes of this Section, SONY and each of the THIRD-PARTY SUPPLIERS shall be collectively referred to as “SONY”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE AND/OR DEVICE, INCLUDING FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY RELATED TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES ARISING OUT OF LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE SOFTWARE OR ANY ASSOCIATED HARDWARE, DOWN TIME AND USER’S TIME, EVEN IF ANY OF THEM HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EACH AND ALL OF THEIR AGGREGATE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR ONE MILLION JAPANESE YEN (\1,000,000). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. INDEMNITY Except as prohibited by applicable law, you agree to defend, indemnify and hold harmless SONY and the THIRD-PARTY SUPPLIERS and their respective subsidiaries, affiliates, officers and employees, from any loss, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use or third parties’ use of the SOFTWARE, APPLICATION SOFTWARE and/or the DEVICE (including, without limitation, any software vulnerability caused by such use and any accident caused by such usage of the DEVICE as used or controlled with the APPLICATION SOFTWARE), your violation of this AGREEMENT or your failure to fulfill your responsibility under this AGREEMENT. UPDATE SONY may, but shall be under no obligation to, release upgrades, updates, bug-fixes and/or otherwise modified versions of the SOFTWARE in such manner which SONY deems to be adequate. If and when such updated SOFTWARE is released, you shall use such updated SOFTWARE to modify the APPLICATION SOFTWARE in accordance with Sony’s instructions provided in connection therewith. FORCE MAJEURE SONY shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. ENTIRE AGREEMENT, WAIVER, SEVERABILITY This AGREEMENT and SONY’s privacy policy, each as amended and modified from time to time, together constitute the entire agreement between you and SONY with respect to the SOFTWARE. The failure of SONY to exercise or enforce any right or provision of this AGREEMENT shall not constitute a waiver of such right or provision. If any part of this AGREEMENT is held invalid, illegal, or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this AGREEMENT, and the other parts will remain in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the SOFTWARE or this AGREEMENT. Furthermore, this AGREEMENT will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. BINDING ARBITRATION ANY “DISPUTE” THAT IS NOT RESOLVED THROUGH THE INFORMAL NEGOTIATION PROCESS DESCRIBED ABOVE SHALL BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION. “DISPUTE” is defined as any disagreement, cause of action, claim, controversy, or proceeding between you and any Sony entity related to or arising out of the SOFTWARE or this AGREEMENT. DISPUTE is to be given the broadest possible meaning that will be enforced. If a DISPUTE arises, you agree to first give notice to SONY by contacting Sony Electronics Inc. at 16530 Via Esprillo, MZ 1105, San Diego, CA 92127, Attn: Legal Department, and engaging in good faith negotiations to attempt to resolve any DISPUTE for at least 14 days, except that you or Sony (or any of its affiliates) may skip this informal negotiation procedure for DISPUTE enforcing, protecting, or concerning the validity of intellectual property rights. ARBITRATION INSTRUCTIONS To begin arbitration, either you or SONY must make a written demand to the other for arbitration. The arbitration will take place before a single arbitrator. It will be administered in keeping with the Expedited Procedures of the Commercial Arbitration Rules, and the Supplementary Proceedings for Consumer-Related disputes when applicable ("Rules") of the American Arbitration Association ("AAA") in effect when the claim is filed. You may get a copy of AAA's Rules by contacting AAA at (800) 778-7879 or visiting www.adr.org. The filing fees to begin and carry out arbitration will be shared between you and SONY, but in no event shall your fees ever exceed the amount allowable by the special rules for Consumers Disputes provided for by AAA, at which point SONY will cover all additional administrative fees and expenses. This does not prohibit the arbitrator from giving the winning party their fees and expenses of the arbitration when appropriate pursuant to the Rules. Unless you and SONY agree differently, the arbitration will take place in the county and state where you live, and applicable federal or state law shall govern the substance of any DISPUTE. The Federal Arbitration Act, 9 U.S.C. § 1, et seq., will govern the arbitration itself and not any state law on arbitration. The arbitrator’s decision will be binding and final, except for a limited right of appeal under the Federal Arbitration Act. The arbitrator may award declaratory or injunctive relief only in favor of the party seeking relief, and only to the extent necessary to provide relief warranted by that party’s individual claim. Any court with jurisdiction over the parties may enforce the arbitrator’s decision. SMALL CLAIMS EXCEPTION Despite the provisions set forth above, you have the right to litigate any DISPUTE in small claims court or other similar court of limited jurisdiction, to the extent the amount at issue does not exceed $15,000, and as long as such court has proper jurisdiction and all other requirements (including amount in controversy) are satisfied. CLASS ACTION WAIVER YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ANY DISPUTES IN COURT BEFORE A JUDGE OR JURY. ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, AND BOTH PARTIES AGREE NOT TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, REPRESENTATIVE ACTION, CONSOLIDATED ACTION, OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS ALL PARTIES INVOLVED IN THE DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. OPT-OUT INSTRUCTIONS IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND/OR THE CLASS ACTION WAIVER ABOVE, THEN: (1) YOU MUST NOTIFY SONY IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST USE THE SOFTWARE OR AGREE TO THIS AGREEMENT, WHICHEVER OCCURS FIRST; (2) YOUR WRITTEN NOTIFICATION MUST BE MAILED TO SONY ELECTRONICS INC., 16530 VIA ESPRILLO, MZ 1105, SAN DIEGO CA 92127, ATTN: LEGAL DEPARTMENT; AND (3) YOUR WRITTEN NOTIFICATION MUST INCLUDE: (A) YOUR NAME; (B) YOUR ADDRESS; (C) THE DATE YOU FIRST USED THE SOFTWARE OR AGREED TO THIS AGREEMENT; AND (D) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION AND/OR TO BE BOUND BY THE CLASS ACTION WAIVER. REJECTING CHANGES MADE TO THE DISPUTE PROCEDURES Despite anything to the contrary in this AGREEMENT, you may reject changes made to the binding arbitration provision and class action waiver if: (1) you’ve already begun authorized use of the SOFTWARE at the time the change was/is made; and (2) you mail written notice to the address in the immediately preceding paragraph within 30 days after the particular change was/is made. Should such a situation arise, you will still be bound by the DISPUTE procedures you previously agreed to and existing before the change you rejected was made. MISCELLANEOUS Any DISPUTE determined not subject to arbitration and not initiated in small claims court will be litigated by either party in a court of competent jurisdiction in either the superior court for the County of San Diego or in the United States District Court for the Southern District of California. EQUITABLE REMEDIES Notwithstanding anything contained in this AGREEMENT to the contrary, you acknowledge and agree that any violation of or non-compliance with this AGREEMENT by you will cause irreparable harm to SONY, for which monetary damages would be inadequate, and you consent to SONY obtaining any injunctive or equitable relief that SONY deems necessary or appropriate in such circumstances. SONY may also take any legal and technical remedies to prevent violation of and/or to enforce this AGREEMENT, including, but not limited to, immediate termination of your use of the SOFTWARE, if SONY believes in its sole discretion that you are violating or intend to violate this AGREEMENT. These remedies are in addition to any other remedies SONY may have at law, in equity or under contract. TERMINATION Without prejudice to any of its other rights, SONY may terminate or suspend your access or use of the SOFTWARE and/or terminate this AGREEMENT if you fail to comply with any of its terms or SONY reasonably determines, in SONY’s sole discretion, that: (i) the APPLICATION SOFTWARE causes any potential security vulnerability; (ii) the APPLICATION SOFTWARE does not function fully, completely, correctly or as otherwise expected in connection with the DEVICE; (iii) the APPLICATION SOFTWARE contains or promotes any content that does not comply with SONY’s then current policies, procedures or parameters as may be provided from time to time; (iv) the APPLICATION SOFTWARE actually or allegedly infringes or misappropriates any third party’s intellectual property rights; (v) the APPLICATION SOFTWARE contains or promotes any inappropriate, defamatory, obscene or unlawful content; (vi) the APPLICATION SOFTWARE contains any messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisement; (vii) SONY reasonably determines the APPLICATION SOFTWARE otherwise creates a negative user experience. In case of such termination, you must: (a) cease all use, and destroy any copies, of the SOFTWARE within two (2) weeks from the date of such termination and; (b) upon request to be made by SONY, provide SONY with a certification, verifying that such SOFTWARE has been so ceased and destroyed. AMENDMENT SONY RESERVES THE RIGHT TO AMEND ANY OF THE TERMS OF THIS AGREEMENT AT ITS SOLE DISCRETION BY POSTING NOTICE ON A SONY DESIGNATED WEB SITE AND/OR BY PROVIDING NOTICE AS PART OF THE PROCESS IN WHICH YOU OBTAIN UPGRADES/UPDATES OR BY ANY OTHER LEGALLY RECOGNIZABLE FORM OF NOTICE. If you do not agree to the amendment, you should promptly contact SONY for instructions. Your continued use of the SOFTWARE after the effective date of any such notice shall be deemed your agreement to be bound by such amendment. THIRD-PARTY BENEFICIARIES Each THIRD-PARTY SUPPLIER is an express intended third-party beneficiary of, and shall have the right to enforce, each provision of this AGREEMENT with respect to the SOFTWARE of such party. Should you have any questions concerning this AGREEMENT, you may contact SONY by writing to SONY at: Sony Electronics Inc., 16530 Via Esprillo, San Diego, CA 92127.
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