Effective from: 9th August 2005
1.1 SN Systems has created the Software, particulars of which are set out in the Appendix.
1.2 The Licensee is a developer and wishes to utilise the Software, subject to the terms and conditions of this SUL.
2.1 In this Standard User License ("SUL"):
"Acknowledgement of Order" means a confirmatory e-mail sent by SN Systems to the Licensee to show that it accepts the Request Order on the terms and conditions of this SUL;
"Appendix" means the appendix attached to and forming part of this SUL;
"Associated Component(s)" means (where applicable) any component required in order to use the Software correctly and facilitate the use of the Software, particulars of which are set out in the Appendix;
"Designated User(s)" means the user(s) designated by the Licensee to use the Software in accordance with clause 3.3;
"Initial Period" means the initial period of this SUL (as stated in the Appendix) commencing on the date that the Licensee receives the Acknowledgement of Order in accordance with clause 3.1;
"Intellectual Property Rights" means all intellectual property rights including without limitation all rights in 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;
"Licensee" is the licensee of the Software under this SUL;
"License Fee" is the fee for the Software agreed between the parties;
"PC" means any personal computer under the Licensee's control on which the Software has been installed;
"Product(s)" is any game or graphic being developed by or software tested by the Licensee for the Sony Console;
"Request Order" is the request completed by the Licensee and sent as an offer by the Licensee to SN Systems to enter into this SUL whether by facsimile or by completing and e-mailing the standard request order on the SN Systems web-site (or such other means as may be permitted by SN Systems from time to time);
"Server Software License" means the SN Systems Server Software License;
"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;
"Software" is the development tool licensed to the Licensee under this SUL to be used in conjunction with the Associated Component(s), particulars of which are set out in the Appendix together with any user documentation and any Upgrades provided (in whatever medium) from time to time but excluding any Third Party Software;
"Sony Console" is the games console developed by Sony, the particulars of which are set out in the Appendix;
"Sony" is Sony Computer Entertainment Inc whose principal place of business is 6-21 Minami-Aoyama-chome, Minato-Ku, Tokyo 107-0062, Japan;
"Sony Technology" is the information relating to the hardware, library programs and development system forming the Sony Console provided by Sony to SN Systems to enable SN Systems to develop the Software;
"SUL" is this Standard User License for the Software;
"Third Party Software" is any third party software incorporated into the Software; and
"Upgrade" is a new release of any item of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, the use of which does not require the procurement of new software.
2.2 In the event of any inconsistency between the Request Order and the SUL, the terms of this SUL will prevail. No terms supplied by the Licensee to SN Systems will apply.
2.3 Terms used in this SUL, where appropriate, will be construed in accordance with their common usage in the UK computer industry.
3.1 To signify its acceptance of a Request Order SN Systems will (in its entire discretion) send an Acknowledgement of Order containing this SUL and an invoice to the Licensee for the License Fee which shall include the cost of any Associated Component(s) to the Licensee's address specified on the Request Order and will (provided that the Licensee has supplied such information to SN Systems to enable it to do so):
3.1.1 provide the Licensee with a password to enable the Licensee to download the Software from the SN Systems web-site or deliver the Software in CD ROM format and, if applicable, the Associated Component(s) (unless already delivered to the Licensee under an evaluation license) to the premises designated by the Licensee on the Request Order;
3.1.2 provide the Licensee with a password to enable it to enter the support area on the SN Systems web-site; and
3.1.3 on receipt of cleared funds, provide the Licensee with a license file to enable the activation of the Software, to take place in accordance with a Server Software License (if appropriate).
3.2 In consideration of the License Fee, SN Systems grants to the Licensee 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 in object code form for the purposes of developing the Product(s). SN Systems reserves all rights not expressly granted. This SUL is personal to the Licensee and must not, subject to clause 13.4, be assigned, sub-licensed, sold, rented, leased or made over to any other person in any way.
3.3 The Software is only for use on one PC at a time in conjunction with any compatible hardware and may only be used by the Designated User(s). The Licensee will promptly provide SN Systems with the name and e-mail address(es) of the Designated User(s) after receipt of the Software. The Licensee will notify SN Systems of any change from time to time of its Designated User(s) and will keep full, accurate and up to date records of the number of copies of the Software running on the Licensee's computer system.
3.4 Any medium upon which the Software is supplied will remain the property of SN Systems.
3.5 Risk in any Software medium and any Associated Component(s) shall pass to the Licensee on dispatch.
3.6 The Licensee may only enter into this SUL and continue to benefit from it for the term set out in clause 3.2 if it has the requisite written authorisation from Sony. Breach of this term by the Licensee may result in the termination of this SUL by SN Systems.
3.7 The Licensee hereby agrees to comply with and be subject to terms and conditions provided to the Licensee from time to time relating to Third Party Software including (without limitation) such terms and conditions referred to in the Appendix.
4.1 This SUL is not a sale of the original Software or any copy. The Licensee acknowledges that SN Systems (and its suppliers) remain the owners of the Intellectual Property Rights in the Software and/or the Third Party Software and the Licensee does not acquire any such rights by installing or using the Software and/or the Third Party Software.
4.2 SN Systems has the right to grant a license of the Intellectual Property Rights in the Software subject to the provisions contained in clauses 4.3 and 4.4.
4.3 SN Systems is permitted to use the Sony Technology pursuant to agreements entered into with Sony.
4.4 SN Systems gives no warranty as to the ownership by Sony of the Intellectual Property Rights in the Sony Technology nor in respect of the ownership of the Intellectual Property Rights in the Third Party Software.
4.5 The Licensee will 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 or Sony.
4.6 Title to the Associated Component(s) shall pass on payment of the License Fee. The Licensee acknowledges that it has no Intellectual Property Rights in the Associated Component(s). These shall belong to SN Systems, Sony or any other valid third party owner of such Intellectual Property Rights. SN Systems shall have no liability to the Licensee, including but not limited to, losses of or damages occasioned by possession and/or use of the Associated Component(s) after title to the Associated Component(s) has passed to the Licensee.
4.7 The Licensee represents and warrants that it will not undertake any act or thing which in any way impairs or is intended to impair any part of the right, title, interest or goodwill of SN Systems, Sony or any other owner of Intellectual Property Rights in the Associated Component(s). The Licensee's use of the Intellectual Property Rights in the Associated Component(s) and the Software shall not create any right, title or interest in such Intellectual Property Rights.
5.1 Except as provided under sections 50A and 50B of the Copyright Designs and Patents Act 1988, the Licensee must not decompile, copy or reverse engineer the Software. Any copies of the Software made in accordance with sections 50A and 50B will be the property of SN Systems. In addition, the Licensee must not reverse engineer, modify or disassemble the Associated Component(s).
5.2 Any such copies made under clause 5.1 must contain all of the original Software's proprietary notices or labels. Such notices must not be removed or interfered with at any time.
5.3 The Licensee may not remove or interfere with any proprietary notices or labels on, in or relating to the Software.
SN Systems may audit the use of the Software by the Licensee to ensure that the terms and conditions of this SUL are being complied with on the giving of reasonable advance written notice (including but not limited to requiring proof of the authorisation of Sony referred to in clause 3.6 of this SUL and the records referred to in clause 3.3). The Licensee hereby grants to SN Systems all necessary access to any premises used by or under the Licensee's control accordingly. If an audit reveals that the Licensee has not complied with the terms of this SUL, then without prejudice to any other rights SN Systems may have, the Licensee will immediately pay SN Systems' reasonable costs of audit and any additional fees that should have been paid by the Licensee to SN Systems.
7.1 SN Systems may terminate this SUL immediately in the event of: (a) failure by the Licensee to pay any License Fee or make any other payment within 30 days of the due payment date; (b) any use by the Licensee of the Software outside the scope of the license granted by this SUL which use is not remedied within seven days of its arising; (c) any other material breach of this SUL which, if capable of remedy, remains unremedied for more than seven days; (d) the termination of any of the agreements between Sony and SN Systems referred to in clause 4.3; (e) circumstances arising allowing SN Systems to terminate pursuant to clause 9.3.2; or (f) a material error or defect being reported to SN Systems by the Licensee in accordance with clause 9.1 and during the Initial Period, which SN Systems believes it cannot reasonably correct.
7.2 This SUL is effective from the date on which the Licensee receives the Acknowledgement of Order and will remain in force until terminated.
7.3 Termination (for whatever reason) will be without prejudice to any outstanding License Fees or other amounts owing to SN Systems by the Licensee or any other rights of either party under this SUL which may have accrued up to the date of termination.
7.4 The Licensee hereby acknowledges that any breach by the Licensee of a term of this SUL which gives rise to a right to SN Systems to terminate will be deemed for all purposes to be a repudiatory breach.
7.5 Upon termination (for whatever reason) the Licensee will, at its own cost (unless SN Systems specifies otherwise) immediately:
7.5.1 cease use of the Software and the Associated Component(s);
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 return by pre-recorded post the CD ROM, any user documentation, and any Associated Component(s) supplied by SN Systems to the Licensee under this SUL.
7.6 Upon termination
by SN Systems under clause 7.1(f) or by the Licensee under clause 13.10, SN
Systems will, to the exclusion of all rights and remedies available to the Licensee,
in the case of termination occurring within the Initial Period only, refund
to the Licensee a proportion of the License Fee calculated by reference to the
following formula:
R = (IP-E) x LF/IP
Where:
R = the total amount of the refund
IP = the total number of days in the Initial Period
E = the elapsed number of days from the commencement of the Initial Period
LF = the License Fee
7.7 The following clauses will survive termination of this SUL: 4.1, 5, 6, 7.5, 8, 9.3, 10, 12.2, 13.1, 13.3, 13.5, 13.7, 13.8 ,13.11, 13.14, 13.15.
8.1 The Licensee agrees that the rights and remedies contained in clause 7.1(f) and clause 13.10 of this SUL are the entire rights and remedies of the Licensee against SN Systems, whether arising under this SUL or otherwise, and further, the Licensee hereby waives any other rights and entitlement it may have, whether under statute, common law or as a result of this SUL or any contract with a third party, to make any claim against SN Systems. SN Systems excludes any representation, condition or warranty: (a) that the Software, CD ROM, Associated Component(s) or the user documentation will meet the Licensee's requirements; (b) that the operation of the Software supplied or that the SN Systems web-site will be uninterrupted or virus or error free; or (c) regarding the use or the results of the use of the Software, any support provided to the Licensee by SN Systems, the Associated Component(s), the CD ROM, or the user documentation in terms of its correctness, accuracy, reliability or (where applicable) compatibility with any hardware or operating system.
8.2 The Licensee will load and use the Software and the hardware at the Licensee's own risk. SN Systems will not in any circumstances (including if SN Systems has been negligent) be liable in connection with this SUL or its subject matter or any products produced by third parties and supplied with the Software (including, without limitation, the Associated Component(s) and CD ROM) for: (a) any direct or consequential loss or damage at all (whether arising in the ordinary course of business or otherwise); or (b) any loss of business, data, capital, profit, or goodwill; or (c) for any special, indirect, consequential, incidental or punitive damages howsoever caused including without limitation any damages arising as a result of connections to any other computer systems or consoles, whether arising in tort, contract, statutory duty or otherwise even if SN Systems was previously advised of the possibility of such damages.
8.3 In no event will SN Systems' liability under this SUL exceed the License Fee paid by the Licensee to SN Systems under this SUL.
8.4 SN Systems accepts no liability for third party goods and services but will use its reasonable endeavours to pass on to the Licensee the benefit of any warranties it may have in respect of such third party goods or services.
8.5 Nothing in this SUL will apply so as to limit or exclude any liability SN Systems may have to the Licensee resulting from: (a) death or personal injury caused by the negligence of SN Systems; or (b) any fraud or fraudulent misrepresentation made to the Licensee by SN Systems; or (c) breach of the terms implied under S12 of the Sale of Goods Act 1979 as to title and quiet possession or S2 of the Supply of Goods and Services Act 1982; or (d) any other liability which cannot be excluded or limited by law.
9.1 In the event of a material error or defect in the Software arising during the development of the Product(s), SN Systems will correct (as far as it is able) such error or defect to the reasonable satisfaction of the Licensee, provided that the Licensee: (a) 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 (b) supplies SN Systems with detailed information of the error or defect on notification and an up to date master copy of the Product(s).
9.2 The Licensee warrants to SN Systems that:
9.2.1 it will constantly develop its Product(s) over a reasonable period and to a reasonable time scale;
9.2.2 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 obligation under clause 9.1 without causing a delay to the Licensee's delivery timetable for shipment or Sony approval of the Product(s);
9.2.3 it will not ship the Product(s) until it has tested the Product(s) using all reasonable skill and care and it is satisfied that the Product(s) are free from all errors and defects; and
9.2.4 it will provide SN Systems with a sample copy of the final version of the Product(s) within 14 days of shipment.
9.3 In the event that the Licensee does not comply with the conditions set out in clauses 9.1 and 9.2, the Licensee:
9.3.1 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
9.3.2 agrees that SN Systems may terminate this SUL immediately without prejudice to any other rights SN Systems may have.
9.4 In consideration of the rights and obligations contained in this SUL the Licensee grants SN Systems a non-exclusive, perpetual, non-assignable license to use the copy of the Product(s) provided pursuant to clause 9.1 (b) or clause 9.2.4 for the purposes of auditing and testing the Product(s) only.
The Licensee hereby agrees to indemnify fully and effectively and keep SN Systems fully and effectively indemnified against any claims by any third parties, losses or expenses (including legal costs) SN Systems incurs in connection with any claim made against it arising out of a breach by the Licensee of this SUL (whether arising under contract, tort, or otherwise) including but not limited to any claim brought by Sony for breach of the terms contained in clause 3.6 of this SUL.
11.1 SN Systems will provide the Licensee with telephone support and email support during normal U.K. business hours. During the Initial Period SN Systems will provide such support free of charge. Thereafter, support will be provided in consideration of the annual support fee (detailed below). SN Systems will use its reasonable endeavours to correct errors but will not provide bespoke development upgrades for the Licensee nor new versions of the Software. SN Systems will also provide the Licensee with Upgrades (at SN Systems' discretion) via a restricted area on the SN Systems web-site in accordance with the terms of this clause 11.
11.2 SN Systems will prior to each anniversary date of this SUL issue an invoice to the Licensee for the annual support fee in accordance with the fee rates as notified by SN Systems to the Licensee from time to time and the Licensee will pay SN Systems such annual support fee in accordance with the terms contained in clause 12. In the first year of the SUL, where the Initial Period is less than 12 months, then SN Systems may invoice the Licensee for the support for the remainder of that first year prior to the expiry of the Initial Period. If the Licensee fails to pay any support fee when due, it will not be entitled to the support outlined in this clause 11 or any Upgrades.
11.3 SN Systems reserves the right to:
11.3.1 increase such support fee annually;
11.3.2 charge additional fees for technical support services which it deems to be beyond the normal scope of technical support services provided under this SUL; and
11.3.3 withdraw support for the Software on giving reasonable notice to the Licensee.
11.4 SN Systems may withdraw support at any time that the Licensee is in material breach of any of the terms of this SUL.
11.5 SN Systems will use reasonable skill and care in providing the support under this SUL.
11.6 If the Licensee (or any individual or company associated with or acting for or on behalf of the Licensee) has purchased more than one SUL in respect of the Software but has not purchased support under all such SULs at any given time, then SN Systems reserves the right to withdraw its support to the Licensee in respect of that Software. If SN Systems withdraws its support in accordance with this clause 11.6, then it will refund any support fees already paid by the Licensee under any such SULs (such refund to be reduced to take into account any support already received by the Licensee).
12.1 Subject to issue by SN Systems of the relevant invoices, payment will be due to SN Systems from the Licensee within 30 days of the date of the SN Systems' invoice.
12.2 If the Licensee 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):
12.2.1 charge the Licensee interest on the overdue amount at the rate of 4 percentage points above Barclays Bank plc's annual base rate from time to time from the due date until the date of payment. Such interest will accrue on a daily basis both before and after judgment; and
12.2.2 refuse to issue an Upgrade of the Software and/or
12.2.3 withdraw any support provided to the Licensee (where applicable).
12.3 All payments made by the Licensee 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.
12.4 SN Systems reserves the right to charge the Licensee reasonable additional amounts for the delivery of the Software and any Associated Component(s) or any other additional amounts as may be published on the SN Systems web-site from time to time.
13.1 This SUL will be construed, interpreted and governed by the laws of England and Wales and subject to the exclusive jurisdiction of the Courts of England and Wales. The jurisdiction provision in this clause 13.1 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.
13.2 Neither party to this SUL will be liable to the other for any delay in, or failure of, performance of its obligations under this SUL arising from any cause beyond its reasonable control save that lack of funds will not be deemed to be such a cause.
13.3 This SUL (and any documents referred to in this SUL produced by SN Systems) sets out the entire agreement and understanding between SN Systems and the Licensee in connection with its subject matter. Without prejudice to the provisions contained in clause 8 the Licensee irrevocably and unconditionally waives any rights it may have against SN Systems: (a) to rescind this SUL by virtue of any misrepresentation (other than fraudulent misrepresentation); and (b) to claim damages for any misrepresentation (other than fraudulent misrepresentation) whether or not contained in this SUL.
13.4 The Licensee may not assign, hold on trust or in any other way make over to any third party including any affiliated companies, subsidiaries and/or holding companies of the Licensee the benefit of this SUL either in whole or in part, without SN Systems' express prior written consent.
13.5 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 SUL or otherwise. Any express waiver of any breach of this SUL will not be deemed to be a waiver of any subsequent breach.
13.6 This SUL may not be amended, modified, varied or supplemented by the Licensee except in writing signed by or on behalf of both SN Systems and the Licensee by duly authorised representatives.
13.7 Notices under this SUL will be in writing. Notices to SN Systems will be sent to its Company Secretary at the registered office from time to time. Notices to the Licensee will be sent to the address appearing on the Request Order or such other address in the United Kingdom as the Licensee may notify to SN Systems in writing from time to time. Notices may be sent by first class mail. Correctly addressed notices sent by first class mail will be deemed to be delivered seven days (excluding Saturdays, Sundays and bank holidays in England and Wales) after posting.
13.8 Neither party to this SUL 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 SUL at the time of disclosure). 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. For the purposes of this clause 13.8, 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 Licensee as applicable and any password disclosed to the Licensee by SN Systems. This provision will not apply where disclosure is required by law or any regulatory authority nor to any confidential information required by Sony from SN Systems in the event of a breach by the Licensee of clause 3.6. SN Systems is entitled to publicise the use by the Licensee of the Software.
13.9 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.
13.10 SN Systems may, at its sole discretion, change any terms of this SUL by posting a new agreement on its web-site. The new terms will take effect thirty (30) days after posting on the web-site. The Licensee's use of any of the services provided on the SN Systems web-site after such changes are posted will constitute the Licensee's acceptance of the new terms. If the Licensee does not agree to the new terms it may within a period of 30 days after such posting terminate this SUL on notice to SN Systems and the terms set out in clause 7.6 will apply.
13.11 Sony may enforce the term contained in clause 3.6 of this SUL in accordance with and subject to any relevant provisions contained in: (a) this SUL; and (b) the Contracts (Rights of Third Parties) Act 1999 ("1999 Act"). SN Systems may rescind this SUL or vary it in such a way as to extinguish Sony's rights under the 1999 Act. Except as provided in this clause 13.11, a person who is not a party to this SUL will have no rights under the 1999 Act to enforce any term of it. This clause 13.11 does not affect any right or remedy of any person which exists or is available otherwise than pursuant to the 1999 Act.
13.12 If any part of this SUL is found to be void or unenforceable, it will be severed from the rest of the SUL so that it is ineffective to the extent that it will not affect the validity of the balance of the SUL, which will remain valid and enforceable according to its terms.
13.13 Nothing in this SUL or contained on the SN Systems web-site will constitute an offer by SN Systems to provide the Software, the Third Party Software, user documentation, support or Associated Component(s) to any person.
13.14 Both parties agree to adhere at all times to the provisions of the Data Protection Act 1998 in respect of any personal data that it receives pursuant to this SUL. SN Systems will use the Licensee's personal data (as such term is defined in the Act) to administer its relationship with the Licensee, including but not limited to fulfilling any order placed by the Licensee, delivering any such order, providing important product information, providing support, undertaking customer research/development and software development, informing the Licensee of any of its products and fulfilling any notification obligations that it has to third parties, such as Sony. The Licensee acknowledges that such notification obligation may involve transferring the Licensee's personal data outside the European Economic Area and the Licensee hereby consents to such a transfer. If the Licensee does not wish to receive any marketing material, then it must contact SN Systems by e-mailing webmaster@snsys.com or writing to Webmaster, SN Systems Limited, 4th Floor, Redcliff Quay, 120 Redcliff Street, Bristol, BS1 6HU, U.K. If the Licensee wishes to receive a copy of the Licensee's personal information that SN Systems holds (in return for a fee of £10) or to have any inaccuracies corrected, then it must contact SN Systems by e-mailing webmaster@snsys.com or writing to Webmaster at the above address.
13.15 The Licensee is responsible for compliance with applicable local laws including, but not limited to, the export and import regulations of the U.K. and other countries. The Licensee hereby undertakes that the Software or Product(s) will not be shipped, transferred or re-exported, directly or indirectly, to sanctioned or embargoed countries (or their nationals) or groups. Details of the applicable restrictions are set out in the web-site of the U.K. Export Administration Regulations: www.dti.gov.uk/export.control/. The Licensee will not (and will not allow any third party to) use or acquire the Software, nor produce any Product(s) which may be used or acquired, for any terrorist activities or for any nuclear activities, chemical or biological weapons or missile projects unless authorised by the U.K. Government.
Software:
The software development tool known as Tuner for PSP® and related user documentation
(as may be published by SN Systems from time to time on its web-site or otherwise).
Particulars
of the Software:
Tuner for PSP® captures performance data from a program running on a
development tool and displays the data graphically on a host computer.
Sony Console:
PSP®
Associated Component(s):
None.
Third Party
Software Notices/Terms and Conditions:
None.
Initial Period:
60 days
Additional or
amended terms to the SUL:
None.