END USER LICENSE AGREEMENT
IMPORTANT:
BEFORE USING THE SOFTWARE, PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY. BY USING THE SOFTWARE YOU ARE ACCEPTING THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, YOU MAY NOT USE THE SOFTWARE AND YOU SHOULD PROMPTLY CONTACT SDNA FOR INSTRUCTIONS.
This EULA is a legal agreement between you and Sony Digital Network Applications, Inc. (“SDNA”). This EULA governs your rights and obligations regarding this software of SDNA, its affiliates or its third party licensors (“THIRD-PARTY SUPPLIERS”), to which this EULA is attached, together with any updates/upgrades provided by SDNA, 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 a separate end user license agreement and shall be expressly excluded from SOFTWARE (“EXCLUDED SOFTWARE”).
SOFTWARE LICENSE
The SOFTWARE is licensed, not sold. The SOFTWARE is protected by copyright and other intellectual property laws and treaties.
COPYRIGHT
All rights and titles in and to the SOFTWARE (including, but not limited to, any images, photographs, animation, video, audio, music, text and "applets" incorporated into the SOFTWARE) are owned by SDNA, its affiliates or one or more of the THIRD-PARTY SUPPLIERS.
GRANT OF LICENSE
SDNA grants you a limited license to use the SOFTWARE solely in connection with your applicable device which is compatible with the requirements of OS applied to the SOFTWARE (e.g., if the SOFTWARE is designed to run on Android OS, then your device should be the Android compatible device) (“DEVICE”) and only for your individual, non-commercial use. SDNA and its THIRD-PARTY SUPPLIERS expressly reserve all rights in the SOFTWARE that this EULA does not specifically grant to you.
REQUIREMENTS AND LIMITATIONS
Except as specifically described in notices and/or user instructions provided with the SOFTWARE or on SDNA-designated web site, you may not (a) use the SOFTWARE over a network or (b) distribute the SOFTWARE to other devices or users over a network. You may not copy, publish, adapt, redistribute, 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 of the 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 for use on more than one DEVICE unless expressly authorized to do so by SDNA. You may not remove, alter, cover or deface any trademarks or notices on the SOFTWARE. You may not share, distribute, rent, lease, sublicense, assign or sell the SOFTWARE. The software, network services or other products other than the SOFTWARE upon which the SOFTWARE’s performance depends might be interrupted or discontinued at the discretion of the suppliers (software suppliers, service suppliers, or SDNA). SDNA and its suppliers do not warrant that the SOFTWARE, network services or other products will continue to be available, or will operate without interruption or modification. Some jurisdictions do not allow requirements and limitations of your rights and in such case the above requirements or limitations may not apply to you.
EXCLUDED SOFTWARE
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. Please refer to “About Box” in the SOFTWARE or other SDNA-designated web site for a list of applicable OPEN SOURCE COMPONENTS included in the SOFTWARE, 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 EULA. To the extent the terms of the licenses applicable to EXCLUDED SOFTWARE prohibit any of the restrictions in this EULA 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 SDNA to make an offer to provide source code in connection with the SOFTWARE, such offer is hereby made.
USE OF SOFTWARE WITH COPYRIGHTED MATERIALS
The SOFTWARE may be capable of being used by you to store, process and use content created by you and third parties. Such content may be protected by copyright, other intellectual property laws, and/or agreements. You agree to use the SOFTWARE only in compliance with all such laws and agreements that apply to such content. You agree that SDNA may take appropriate measures to protect the copyright of content stored, processed or used by the SOFTWARE. Such measures include, but are not limited to, counting the frequency of your backup and restoration through certain SOFTWARE features, refusal to accept your request to enable restoration of data, and termination of this EULA in the event of your illegitimate use of the SOFTWARE.
CONTENT SERVICE
THE SOFTWARE MAY BE DESIGNED TO BE USED WITH CONTENTS AVAILABLE THROUGH ONE OR MORE CONTENT SERVICES (“CONTENT SERVICE”). USE OF THAT CONTENT SERVICE AND THAT CONTENT IS SUBJECT TO THE TERMS OF SERVICE OF THAT CONTENT SERVICE. IF YOU DECLINE TO ACCEPT THOSE TERMS, YOUR USE OF THE SOFTWARE WILL BE LIMITED. You understand, acknowledge and agree that certain content and services available through the SOFTWARE may be provided by third parties over which SDNA has no control. USE OF THE CONTENT SERVICE MAY REQUIRE AN INTERNET CONNECTION. THE CONTENT SERVICE MAY BE DISCONTINUED AT ANY TIME. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS OF YOUR RIGHTS AND IN SUCH CASE THE ABOVE RESTRICTIONS MAY NOT APPLY TO YOU.
SOCIAL NETWORKING SERVICE
The SOFTWARE may be designed to be used with social networking services (“SNS”). Use of the SNS is subject to the terms of such SNS. If you decline to accept those terms, your use of the SOFTWARE will be limited. You understand, acknowledge and agree that certain interface of the SNS available through the SOFTWARE may incorporate certain directory information (e.g., hashtag or URL) of SDNA at the initial setting. Such message sent to SDNA’s account or other directories by you may be used for the purpose of support for the users of the SOFTWARE, promotion of the SOFTWARE or SDNA’s product or other use by SDNA as permitted under the terms of such SNS. Use of the SNS may require an Internet connection. The SNS may be discontinued at any time. In no event shall SDNA have any responsibility arising from the use of the SNS under the terms of such SNS. Some jurisdictions do not allow restrictions of your rights and in such case the above restrictions may not apply to you.
INTERNET CONNECTIVITY AND THIRD PARTY SERVICES
You understand, acknowledge and agree that access to certain SOFTWARE features may require an Internet connection for which you are solely responsible. Further, you are solely responsible for payment of any third party fees associated with your Internet connection, including but not limited to Internet service provider or airtime charges. Operation of the 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 the third party providing such service.
EXPORT AND OTHER REGULATIONS
You agree to comply with all applicable export and re-export restrictions and regulations of the area or country in which you reside, 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.
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"). SDNA, 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.
EXCLUSION OF WARRANTY ON SOFTWARE
You expressly 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, and may be designed to be used in connection with the CONTENT SERVICE as described in this EULA and the notices and/or user instructions provided with the SOFTWARE or on SDNA-designated web site.
SDNA AND EACH OF THE THIRD-PARTY SUPPLIERS AND EACH OF THEIR RESPECTIVE AFFILIATES (for purposes of this Section, SDNA and each of the THIRD-PARTY SUPPLIERS and each of their respective affiliates shall be collectively referred to as “SDNA”) 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. SDNA 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 SNS AND THE INTERNET), CONTENT SERVICES OR PRODUCTS (OTHER THAN THE SOFTWARE) UPON WHICH THE SOFTWARE’S PERFORMANCE DEPENDS WILL CONTINUE TO BE AVAILABLE, UNINTERRUPTED OR UNMODIFIED, AND (E) REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SDNA OR AN AUTHORIZED REPRESENTATIVE OF SDNA 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 AND IN SUCH CASE THESE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
SDNA, EACH OF THE THIRD-PARTY SUPPLIERS AND EACH OF THEIR RESPECTIVE AFFILIATES (for purposes of this Section, SDNA and each of the THIRD-PARTY SUPPLIERS and each of their respective affiliates shall be collectively referred to as “SDNA”) SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES 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 THE DEVICE 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 EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND IN SUCH CASE THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
CONSENT TO USE OF NON-PERSONAL INFORMATION, LOCATION DATA, DATA SECURITY
You agree that SDNA and its affiliates, partners and agents may read, collect, transfer, process and store certain information collected from the SOFTWARE, including but not limited to information about (i) the SOFTWARE and (ii) the software applications and peripheral devices that interact with your DEVICE and the SOFTWARE (“Information”). Information includes, but is not limited to: (1) unique identifiers relating to your DEVICE and its components; (2) performance of the DEVICE, the SOFTWARE and their components; (3) configurations of your DEVICE, the SOFTWARE and the software applications and peripheral devices that interact with the DEVICE and the SOFTWARE; (4) use and frequency of use of the functions of (i) the SOFTWARE, and (ii) the software applications and peripheral devices that interact with the SOFTWARE; and (5) location data, as indicated below. SDNA and its affiliates, partners and agents may use and disclose INFORMATION subject to applicable laws in order to improve its products and services or to provide products or services to you. Such uses include, but are not limited to: (1) administering the functionalities of the SOFTWARE; (2) to improve, service, update or upgrade the SOFTWARE; (3) improving, developing and enhancing the current and future products and services of SDNA and other parties; (4) with your consent, to provide you with information about the products and services offered by SDNA and other parties; (5) complying with applicable laws or regulations; and (6) to the extent offered, providing you with location-based services of SDNA and other parties, as indicated below. In addition, SDNA retains the right to use INFORMATION to protect itself and third parties from illegal, criminal or harmful conduct.
Certain services available through the SOFTWARE (including, but not limited to, SNS and CONTENT SERVICES) may rely upon location information, including the real-time geographic location of the DEVICE. You acknowledge that for the purpose of providing such services, SDNA, THIRD PARTY SUPPLIERS or their partners may collect, archive, process and use such location data, and that such services are governed by the privacy policies of SDNA or such third party. By using any such services, you agree that you have reviewed the privacy policies applicable to such services and consent to such activities.
SDNA, its affiliates, partners and agents will not intentionally use Information to personally identify the owner or user of the SOFTWARE without your knowledge or consent. Any use of Information will be in accordance with the privacy policies of SDNA or such third party. SDNA’s current privacy policy is located at: http://www.sonydna.com/sdna/e/privacy/index.html.
Please contact applicable third parties for privacy policies relating to personally identifiable and other information you provide when you use or access third party software or services.
INFORMATION may be processed, stored or transferred to SDNA, its affiliates or agents which are located in countries outside of your country of residence and/or the European Economic Area (EEA). Data protection and information privacy laws in certain countries may not offer the same level of protection as your country of residence and/or EEA and you may have fewer legal rights in relation to INFORMATION processed and stored in, or transferred to, such countries. SDNA will use reasonable endeavors to take appropriate technical and organizational steps to prevent unauthorized access to or disclosure of INFORMATION, but does not warranty it will eliminate all risk of misuse of such INFORMATION.
Some jurisdictions do not allow the restrictions of your rights and in such case these restrictions may not apply to you.
AUTOMATIC UPDATE FEATURE
From time to time, SDNA or third parties may automatically update or otherwise modify the SOFTWARE, including, but not limited to, for purposes of enhancement of security functions, error correction and improvement of functions, at such time as you interact with SDNA's or third parties' servers, or otherwise. Such updates or modifications may delete or change the nature of features or other aspects of the SOFTWARE, including functions you may rely upon. You hereby agree that such activities may occur at SDNA's sole discretion and that SDNA may condition continued use of the SOFTWARE upon your complete installation or acceptance of such update or modifications. Any updates/modifications of the SOFTWARE shall be deemed to be, and shall constitute part of, the SOFTWARE for purposes of this EULA. By acceptance of this EULA, you consent to such update/modification.
ENTIRE AGREEMENT, WAIVER, SEVERABILITY
This EULA and SDNA’s privacy policy, each as amended and modified from time to time, together constitute the entire agreement between you and SDNA with respect to the SOFTWARE. The failure of SDNA to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision. If any part of this EULA is held invalid, illegal, or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this EULA, and the other parts will remain in full force and effect.
GOVERNING LAW AND JURISDICTION
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA. Furthermore, this EULA 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, even if such law is adopted in Ontario, Canada. This EULA shall be governed by the laws of Japan, without regards to conflict of laws provisions. Any dispute arising out of this EULA shall be subject to the exclusive venue of the Tokyo District Court in Japan, and the parties hereby consent to the venue and jurisdiction of such courts. SDNA AND YOU EXPRESSLY WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS OR DISPUTES ARISING UNDER OR RELATING TO THIS EULA. Any claim or cause of action arising under this EULA must be commenced within one (1) year after the claim or cause of action arises. Some jurisdictions do not allow the exclusion of the rights of trial by jury and in such case the above exclusion may not apply to you.
EQUITABLE REMEDIES
Notwithstanding anything contained in this EULA to the contrary, you agree that any violation of or non-compliance with this EULA by you will constitute an unlawful and unfair business practice, and will cause irreparable harm to SDNA, for which monetary damages would be inadequate, and you consent to SDNA obtaining any injunctive or equitable relief that SDNA deems necessary or appropriate in such circumstances. SDNA may also take any legal and technical remedies to prevent violation of and/or to enforce this EULA, including, without limitation, immediate termination of your use of the SOFTWARE, if SDNA believes in its sole discretion that you are violating or intend to violate this EULA. These remedies are in addition to any other remedies SDNA may have at law, in equity or under contract.
TERMINATION
Without prejudice to any of its other rights, SDNA may terminate this EULA if you fail to comply with any of its terms. In case of such termination, you must: (i) cease all use, and destroy any copies, of the SOFTWARE; (ii) comply with the requirements in the section below entitled “De-registering your Device”.
AMENDMENT
SDNA RESERVES THE RIGHT TO AMEND ANY OF THE TERMS OF THIS EULA AT ITS SOLE DISCRETION BY POSTING NOTICE ON A SDNA-DESIGNATED WEB SITE, BY EMAIL NOTIFICATION TO AN EMAIL ADDRESS PROVIDED BY YOU, 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 SDNA 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. Some jurisdictions do not allow the amendment of the term of this EULA as set forth herein and in such case such amendment may not apply to you.
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 EULA with respect to the SOFTWARE of such party.
DE-REGISTERING YOUR DEVICE
Should you return your DEVICE to its place of purchase, transfer your DEVICE, or if this EULA is terminated, you must: (i) de-register the DEVICE by deleting any and all accounts you may have established on or have accessed through the SOFTWARE; and (ii) delete the SOFTWARE entirely including the related information or data of the SOFTWARE. You are solely responsible for maintaining the confidentiality of any accounts you have with SDNA OR third parties and any usernames and passwords associated with YOUR USE OF the DEVICE.
SPECIAL TERMS FOR USERS WHO PURCHASED THE SOFTWARE OF PAID VERSION
If you have purchased the SOFTWARE of paid version, then, the following provisions shall apply to you with respect to such SOFTWARE in addition to the provisions set forth above:
Warranty. Notwithstanding the “EXCLUSION OF WARRANTY ON SOFTWARE” clause hereinabove, SDNA warrants the SOFTWARE against material defects for a period of one (1) year from the date of your purchase. Should the SOFTWARE be defective, SDNA is obliged to rectify the defect and may, at its option, perform this either by removing the defect through remedial measures or by delivering a program version free of defects or until release of such version temporarily deliver an error-corrected program version. The SOFTWARE is not to be considered defective in case where the SOFTWARE is used in conjunction with existing or third party hardware or software components to the extent these are not delivered by SDNA or such incompatibilities are not caused by SDNA software components. The same applies in cases where technical general conditions, as laid out in the software documentation, are not met by you.
Liability. Notwithstanding the “LIMITATION OF LIABILITY” clause hereinabove, SDNA shall be liable to you as follows:
(i) In case of injury to life, body or health which is due to SDNA’s negligence and willful misconduct, SDNA is liable in accordance with the statutory provisions;
(ii) For damage which results from SDNA’s gross negligence and willful misconduct, SDNA is liable in accordance with the statutory provisions; and
(iii) For damage which results from SDNA’s contractual obligation under this Agreement, SDNA is liable to the foreseeable damage subject to a maximum sum in the amount actually paid by you for the SOFTWARE.
Except as otherwise expressly set forth in this section, the “LIMITATION OF LIABILITY” clause shall remain in full forth and effect.
Should you have any questions concerning this EULA, you may contact SDNA in writing to SDNA at: Sony Digital Network Applications, Inc., 2-21-28 Higashigotanda, Shinagawa-ku, Tokyo 141-0022, Japan.