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SN Systems
Standard User License
NDK TCP/IP Stack for PlayStation®2
Effective
from: 9th August 2005
1 Background
1.1
SN Systems has created some middleware which enables TCP/IP based network
connectivity for (amongst other things) console-based video games for
the 128-bit computer entertainment system developed by Sony under the
trademark PlayStation®2.
1.2
The Developer is a developer who wishes to utilise the middleware, subject
to the terms and conditions of this Agreement.
2 Interpretation
and Definitions
2.1
In this Standard User License ("SUL"): "Agreement"
is the Invoice together with this SUL; "Developer"
is the licensee of the Software; "End User" is the
purchaser of the Product; "Intellectual Property Rights"
means all intellectual property rights including without limitation
all patents, copyright, design rights, service marks, logos, trade secrets,
database rights, trademarks (whether registered or unregistered) and
all applications for the same, anywhere in the world; "Invoice"
means the invoice supplied by SN Systems to the Developer in respect
of the Software; "License Fee" is the fee referred
to on the Invoice; "PlayStation®2"
is the 128-bit computer entertainment system developed by Sony; "Product"
is the multi-play game or other product being developed by the Developer
for PlayStation®2 into which the Software is incorporated
and where more than one licence is purchased "Product"
shall also mean "Products" accordingly; "Purchase
Order" is the offer by the Developer to SN Systems to purchase
the SUL for rthe Software for the License Fee; "Software"
is the sockets interface (supplied as an EE library and header file(s))
and TCP/IP Stack, various higher level protocols and hardware drivers
(supplied as (an) IOP executable file(s)) for PlayStation®2
and related user documentation described in SN Systems' product literature
from time to time as posted on its web-site; "Sony Information"
is the information relating to the hardware and software forming PlayStation®2
provided by Sony to SN Systems to enable SN Systems to develop the Software;
"Sony" is Sony Computer Entertainment Inc whose principal
place of business is 1-1 Akasaka 7-Chrome, Minato-ku, Tokyo 107-0052,
Japan; "SN Systems" is SN Systems Limited a private
limited company registered in England and Wales (no. 02436957) whose
registered office is at Redcliff Quay, 120 Redcliff Street, Bristol
BS1 6HU; and "TCP/IP" means Transmission Control Protocol/Internet
Protocol.
2.2
In the event of any inconsistency between the terms contained in the
Purchase Order provided by the Developer to SN Systems, the Invoice
and this SUL, the documents shall have the following order of precedence:
this SUL, the Invoice and the Purchase Order. No terms and conditions
supplied by the Developer to SN Systems shall apply.
2.3
Terms used in this SUL shall, where appropriate, be construed in accordance
with their common usage in the UK computer industry.
3 Granting
of License
3.1
In consideration of the License Fee SN Systems grants to the Developer
on the following terms and conditions a perpetual (subject to clause
7) non-transferable and non-exclusive license to use the Intellectual
Property Rights in the Software;
3.1.1 for
the purposes of incorporating the Software into the Product to enable
TCP/IP based network access for the Product; and
3.1.2 to
grant a sub-licence to End Users for the purposes of enabling TCP/IP
network access for the Product.
3.2
SN Systems reserves all rights not expressly granted. This SUL is personal
to the Developer and must not be assigned, sub-licensed (except to End
Users), sold or made over to any other person. The Software may only
be incorporated into copies of the Product.
3.3
The Developer shall promptly notify SN Systems in writing with all details
of any matter likely to give rise to a dispute in connection with any
infringement of the Intellectual Property Rights of SN Systems in the
Software.
3.4
On acceptance of a Purchase Order SN Systems shall deliver an Invoice
containing this SUL to the Developer's address specified on the Purchase
Order. This Agreement shall come into effect on payment by the Developer
to SN Systems of the correct License Fee in accordance with the Invoice,
such Invoice to be paid within 30 (thirty) days of the date of the Invoice.
3.5
The media upon which the Software are supplied shall remain the property
of SN Systems. Risk in such media passes to the Developer on delivery.
4 Ownership
and copyright
4.1
SN Systems has the right to grant a license of the Intellectual Property
Rights in the Software subject to the provisions contained in clauses
4.2 and 4.3. This SUL is not a sale of the original software or any
copy.
4.2
SN Systems is permitted to use the Sony Information pursuant to agreements
entered into with Sony. SN Systems gives no warranty as to the ownership
by Sony of the Sony Information to the Developer.
4.3
SN Systems is permitted to use the KADAK KwikNet Software porting kit
pursuant to agreements entered into with KADAK Products Limited. SN
Systems gives no warranty as to the ownership of the KADAK KwikNet Software
porting kit to the Developer.
4.4
The Developer shall include with every copy of the Product in a position
and form to be agreed with SN Systems the following notice :
“The TCP/IP Stack Software used within this Product is licensed by
SN Systems Limited.
To find out more about SN Systems Limited visit www.snsys.com.
All Rights Reserved.”
5 Copies
and Modifications
5.1
The Developer may not use, copy, modify, decompile, reverse engineer,
disassemble, transfer, rent, lease, sub-contract, or transfer the rights
in the Software or any copy, modification or merged portion thereof
in whole or in part, except as expressly provided for in this SUL.
5.2
The Developer may make an unrestricted number of copies of the Software
for incorporation into copies of the Product.
5.3
Any such copies made under clause 5.2 must contain all of the original
Software's proprietary notices or labels.
5.4
The Developer may not remove or interfere with any proprietary notices
or labels on, in or relating to the Software.
6 Use
of the Licensed Software and Auditing Rights
6.1
The Developer will keep full, accurate and up to date records
of the Products in which the Software has been incorporated.
6.2
In order to use the Software, the Developer must have a PlayStation®2
development system; and have already entered into a standard user license
for the NDK development kit with SN Systems.
6.3
SN Systems may audit the use of the Software by the Developer to ensure
that the terms and conditions of this Agreement are being complied with
on the giving of reasonable advance written notice. This right will
not be exercisable more than once in any twelve month period unless
the audit reveals a breach of the terms and conditions of this Agreement.
The Developer hereby grants to SN Systems all necessary access to any
premises used by or under the control of the Developer as well as the
records referred to in clause 6.1. If an audit reveals that the Software
has been incorporated into a Product for which no licence has been expressly
granted by SN Systems, then without prejudice to any other rights SN
Systems may have, SN Systems will be immediately entitled and the Developer
shall pay SN Systems the additional Licence Fee(s) that should have
been paid by the Developer to SN Systems and the reasonable costs of
its audit. This clause shall survive termination of this Agreement.
7 Termination
7.1
SN Systems may terminate this Agreement immediately in the event of:
7.1.1
failure by the Developer to pay any License Fee or make any other
payment within 30 (thirty) days of the due payment date;
7.1.2
any use by the Developer of the Software outside the scope of the
license granted by this Agreement, which use is not remedied within
7 (seven) days of its arising;
7.1.3
any other material breach of this Agreement which, if capable of remedy,
remains unremedied for more than 7 (seven) days;
7.1.4
the termination of any of the agrements between Sony and SN Systems
referred to in clause 4.2; or
7.1.5
a material error or defect being reported to it under clause 9.1,
which SN Systems believes it cannot reasonably correct.
7.2 This
Agreement is effective from the date described in clause 3.4 and shall
remain in force until terminated.
7.3 Termination for whatever reason shall be without prejudice to any
outstanding License Fee(s) or other amounts owing to SN Systems by the
Developer or any other rights of either party under this Agreement which
may have accrued up to the date of termination.
7.4 The Developer hereby acknowledges that any breach by the Developer
of a term of this Agreement which gives rise to a right to SN Systems
to terminate shall be deemed for all purposes to be a repudiatory breach.
7.5 Upon
termination the Developer will, depending on the decision of SN Systems:
7.5.1 immediately
cease use of the Software for any purpose;
7.5.2 delete
or destroy all copies of the Software in its possession or control
including without limitation erasure of the Software from the storage
media of any computer; and
7.5.3 destroy
or return the Software to SN Systems (save
in respect of those copies of the Software already incorporated into
the copies of the Product unless termination is caused by a breach
of this Agreement by the Developer or by virtue of the provisions
contained in clause 7.1.5).
8 Limited
Warranties and Limitation and Exclusion of Liability
8.1
The Developer agrees that the rights and remedies contained in clause
9 of this Agreement are the entire rights and remedies of the Developer
against SN Systems, whether arising under this Agreement or otherwise,
and further, the Developer hereby waives any other rights and entitlement
it may have, whether under statute, common law or as a result of this
Agreement or any contract with a third party, to make any claim against
SN Systems.
8.2
Except as expressly provided under this Agreement all representations,
conditions, warranties whether expressed or implied (by statue or otherwise)
are excluded to the fullest extent permitted by law. In particular,
but without limitation, SN Systems excludes any representation, condition
or warranty:
8.2.1
that the Software will meet the Developer's requirements;
8.2.2
that the operation of the Software will be uninterrupted or error
free; or
8.2.3
regarding the use or the results of the use of the Software in terms
of its correctness, accuracy, reliability, compatibility with any
hardware or operating system used to control the Product or otherwise.
8.3
The Developer shall load and use the Software at its own risk. SN Systems
shall not (subject to the terms contained in clause 8.5) in any circumstances
(including if SN Systems has been negligent) be liable in connection
with this Agreement or its subject matter for:
8.3.1
any direct or consequential loss or damage at all; or
8.3.2
any loss of business, data, capital, profit, or goodwill; or
8.3.3
any special, indirect, consequential, incidental or punitive damages
howsoever caused including any damages arising as a result of access
of the Product to the Internet.
8.4
In no event shall SN Systems' liability exceed the License Fee under
this Agreement (subject to the terms contained in clause 8.5).
8.5
Nothing in this clause 8 or elsewhere in this Agreement will apply so
as to limit or exclude any liability SN Systems may have to the Developer
resulting from death or personal injury caused by the negligence of
SN Systems or any fraud or fraudulent misrepresentation made to the
Developer by SN Systems or breach of the terms implied under section
12 of the Sale of Goods Act 1979 as to title and quiet possession.
9 Remedies
and Notification
9.1
In the event of a material error or defect in the Software arising
during the development of the Product, SN Systems will correct (as far
as it is able) such error or defect to the reasonable satisfaction of
the Developer, provided that the Developer immediately notifies SN Systems
of any such error or defect or suspected error or defect in the Software
as soon as it is discovered and supplies SN Systems with detailed information
of the error or defect on notification and an up-to-date master
copy of the Product.
9.2 The
Developer warrants to SN Systems that prior to shipment of the Product:
9.2.1 it
will inform SN Systems of any material error or defect in the Software
within a reasonable time so as to enable SN Systems to fulfil its
obligations under clause 9.1.
9.2.2 it
will test using all reasonable skill and care the functionality of
the Product, the incorporation of the Software into the Product and
its TCP/IP network connectivity;
9.2.3 it
will provide SN Systems with a certificate clarifying the name of
the Product which forms the subject of the test, that it was the only
Product tested, that the test has been carried out and either:
9.2.3.1
confirm that the Software has been successfully incorporated into
the Product; or
9.2.3.1
immediately notify SN Systems in accordance with Clause 9.1;
9.2.4 it
will not ship the Product until such a test has been carried out and
it is satisfied that the Software is free from all errors and defects;
and
9.2.5 it
will provide SN Systems with a sample copy of the final version of
the Product within 14 days of shipment.
9.3 The
Developer warrants to SN Systems that it will provide SN Systems with
a sample copy of all the games released by the Developer on the PlayStation®2
from the date of this Agreement.
9.4
In consideration of the rights and obligations contained in this
Agreement the Developer grants SN Systems a non exclusive, perpetual
licence to use the sample copy of the Product for the purposes of auditing
and testing the Product (save that this shall not affect any of the
Developer's obligations to test the Product or any other terms and conditions
contained in this Agreement) and all games/sample copies supplied by
the Developer to use pursuant to clause 9.3.
9.5 In
the event that the Developer does not comply with the conditions set
out in clauses 9.1, 9.2 and 9.3, the Developer:
9.5.1 hereby
agrees to fully and effectively indemnify and keep SN Systems fully
and effectively indemnified against any claims by any third parties,
losses or expenses (including legal costs) SN Systems incurs as a
result thereof; and
9.5.2 agrees
that this Agreement shall automatically expire without prejudice to
any rights SN Systems may have against the Developer.
10 Support
Services
10.1 SN
Systems shall provide support services from time to time but reserves
the express right in its absolute discretion to:
10.1.1 interrupt,
withdraw, suspend, modify and terminate the provision of such services
in such manner at such time as it sees fit; and
10.1.2 offer
the service for such support fee it considers appropriate.
10.2 SN
Systems is under no obligation to provide patches, fixes (save
in respect of clause 9.1), upgrades or new versions of the Software.
11 Payment
11.1 Subject
to issue by SN Systems of the relevant invoices, payment shall be due
to SN Systems from the Developer within 30 days of the date of SN Systems'
invoice.
11.2 If
the Developer does not make any payment to SN Systems by the date when
it is due, SN Systems may (without prejudice to any other rights SN
Systems may have):
11.2.1 charge
the Developer interest on the overdue amount at the rate of 4% (four
per cent) above Barclays Bank plc's annual base rate from time to
time from the due date until the date of payment. Such interest shall
accrue on a daily basis both before and after judgement; and
11.2.2 refuse
to issue an update of the Software (if applicable).
11.3 All
payments made by the Developer to SN Systems will be made free of any
rights of counterclaim or set off and without any deductions or withholdings
of any nature save only as may be required by law.
12 General
12.1 This
Agreement shall be governed by the laws of England and Wales and subject
to the exclusive jurisdiction of the Courts of England and Wales. If
any provision of the Agreement is void or unenforceable under English
Law, such a provision is, to the extent of such invalidity, deemed to
be omitted and the remainder of this Agreement unaffected. The jurisdiction
agreement in this clause 12.1 is made for the benefit of SN Systems
only, and SN Systems reserves the right to apply for injunctive relief
in the court of any jurisdiction to protect any intellectual property
right of, or claim by SN Systems. This clause shall survive termination
of this Agreement.
12.2 Neither
party to this Agreement shall be liable to the other for any delay in,
or failure of, performance of its obligations under this Agreement arising
from any cause beyond its reasonable control save that lack of funds
will not be deemed to be such a cause.
12.3 This
Agreement (and any documents referred to in this Agreement) sets out
the entire agreement and understanding between SN Systems and the Developer
in connection with its subject matter. Without prejudice to the provisions
contained in clauses 8 and 9 the Developer irrevocably and unconditionally
waives any rights it may have against SN Systems:
12.3.1
to rescind this Agreement by virtue of any misrepresentation (other
than fraudulent misrepresentation); and
12.3.2
to claim damages for any misrepresentation (other than fraudulent
misrepresentation) whether or not contained in this Agreement.
12.4 The
Developer may not assign, hold on trust or in any other way make over
to any third party the benefit of this Agreement either in whole or
in part, without SN Systems' express prior written consent.
12.5 Failure
by either party to exercise or enforce any rights, or the giving of
any forbearance, delay or indulgence, will not be construed as a waiver
of its rights under this Agreement or otherwise. Any express waiver
of any breach of this Agreement shall not be deemed to be a waiver of
any subsequent breach.
12.6 This
Agreement may not be amended, modified, varied or supplemented by the
Developer except in writing signed by or on behalf of SN Systems and
by or on behalf of the Developer.
12.7 Notices
under this Agreement shall be in writing. Notices to SN Systems shall
be sent to its Company Secretary at the registered office from time
to time. Notices to the Developer shall be sent to the address appearing
on this Agreement or such other address in the United Kingdom as the
Developer may notify to SN Systems in writing from time to time. Notices
may be sent by first class mail. Correctly addressed notices sent by
mail shall be deemed to be delivered seven days (excluding Saturdays,
Sundays and U.K. bank and public holidays) after posting. This clause
shall survive termination of this Agreement.
12.8 Save
as provided in this Clause, neither party to this Agreement will disclose
to any third party or use any of the other's confidential information
unless that confidential information was publicly known (other than
by breach of this Agreement at the time of disclosure). For the purposes
of this clause 12.8, confidential information includes, without limitation,
any information contained in the Software, the documentation or any
trade secrets or know-how of SN Systems or the Developer as applicable.
This provision shall not apply where disclosure is required by law or
by any regulatory authority. However, information which is obtained
from one or more publicly available sources is not "publicly known"
if substantial skill, labour or expense was required to obtain or produce
it. SN Systems shall also be entitled, after first commercial release
of the Product, to publicise the use by the Developer of the Software
and its incorporation in the Product. This clause shall survive termination
of this Agreement.
12.9 SN
Systems may, at its sole discretion, terminate, change or suspend any
part of its web-site, including any content, features or hours of availability.
12.10 SN
Systems may, at its sole discretion, change any terms of this Agreement
by posting a new version of the Agreement on SN Systems' web-site. The
terms of each new agreement will take effect thirty (30) days after
posting on SN Systems' web-site. The Developer's use of any of the services
provided on the SN Systems' web-site after such changes are posted will
constitute the Developer's acceptance of the new version of the Agreement.
If the Developer does not agree to the new terms it may terminate the
Agreement on notice to SN Systems
12.11 Nothing
in this Agreement confers on any third party any benefits under the
provisions of the Contracts (Rights of Third Parties) Act 1999.
12.12 If
any part of this Agreement is found to be void or unenforceable, it
will be severed from the rest of the Agreement so that it is ineffective
to the extent that it shall not affect the validity of the balance of
the Agreement, which shall remain valid and enforceable according to
its terms.
12.13 Nothing
in this Agreement or contained on the SN Systems web-site shall constitute
an offer by SN Systems to provide the Software to any person.
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