Effective from: 21st April 2009
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 correctly the
Software and facilitate the use of the Software, particulars of which are set
out in the Appendix;
"Designated User" is the user
designated by the Licensee to use the Software in accordance with clause 3.3;
"Initial Period" means the
initial 12 month period of this SUL 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 published on SN Systems' web-site from time to time;
"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 1-1 Akasaka 7-Chrome,
Minato-Ky,
"Sony Technology" is the
information relating to the hardware and software forming the Sony Console
provided by Sony to SN Systems to enable SN Systems to develop the Software;
"PC" is the Designated User's
personal computer 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);
"SN Systems" is SN Systems
Limited, a private limited company registered in
"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;
"SUL" is the Standard User
Licence 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
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 Components 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 deliver the Software in CD ROM
format and, if applicable, the Associated Component(s) (unless already
delivered to the Licensee under an evaluation licence) to the premises
designated by the Licensee on the Request Order or provide the Licensee with a
password to enable the Licensee to download the Software from the SN Systems
web-site;
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 activate the Software.
3.2 In consideration of the Licence 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 Products. 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 SUL is for use on any one PC under
the Licensee's control in conjunction with any compatible hardware and may only
be used by the Designated User. The Licensee will promptly provide SN Systems
with the name and e-mail address of the Designated User after receipt of the
Software. The Licensee will notify SN Systems of any change from time to time
of its Designated User 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) passes to the Licensee on delivery.
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 will 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 Components
shall pass on payment of the Licence Fee. Risk in the Associated Components
shall pass on dispatch of the Associated Components by SN Systems to the
Licensee. The Licensee acknowledges that it has no Intellectual Property Rights
in the Associated Components. 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 Components
after title to the Associated Components 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 Components. The Licensee's use of the Intellectual Property Rights
in the Associated Components and the Software shall not create any right, title
or interest in such Intellectual Property Rights.
5.1 Except as provided under sections
50(A) and 50(B) 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 50(A) and 50(B) will be the property
of SN Systems. In addition, the Licensee must not reverse engineer, modify or
disassemble the Associated Components.
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, SN Systems will be
immediately entitled and 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 SN Systems sends the Acknowledgement of Order to the Licensee and will
remain in force until terminated.
7.3 Termination (for whatever reason) will
be without prejudice to any outstanding Licence 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 = (12-E) x LF/12
Where:
R = the total amount of the refund
E = the elapsed number of months 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) compati
bility 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.
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 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.
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 default 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;
9.2.3 it will not ship the Product until
it has tested it using all reasonable skill and care and it is satisfied that
its Product is 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 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 provided
pursuant to clause 9.1 (b) or clause 9.2.4 for the purposes of auditing and
testing the Product 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
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 published fee rates as posted on the SN
Systems web-site from time to time (or such fee as notified by SN Systems to
the Licensee) and the Licensee will pay SN Systems such annual support fee in
accordance with the terms contained in clause 12.
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.
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.
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 Components 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
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 the benefit of this SUL
either in whole or in part, without SN SystemsEexpress 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
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, 1st Floor Hartwell House,
13.15 The Licensee is responsible for
compliance with applicable local laws including, but not limited to, the export
and import regulations of the
Software
The bundle of software development
tools known as ProDG Plus for PlayStationŽ2 and related user documentation (as
may be published by SN Systems from time to time on its web-site or otherwise),
consisting of the following individual tools:
(1) ProDG for PlayStationŽ2;
(2) Tuner for PlayStationŽ2; and
(3) NDK for PlayStationŽ2.
Particulars of the Software:
(1) ProDG for PlayStationŽ2 is a
suite of software development tools consisting of assemblers, linker, debugger
and utilities which assist developers in the development and debugging of video
games for PlayStationŽ2.
(2) Tuner for PlayStationŽ2 captures performance data from a program running on
a development tool and displays the data graphically on a host computer.
(3) NDK for PlayStationŽ2 consists of two software products, the NDK Analyser
and the NDK TCP/IP Stack. The NDK Analyser is a computer application which
enables a developer: (a) to use the NDK TCP/IP Stack using the native DEC12
interface; and (b) to analyse and intercept all Internet traffic to and from
PlayStationŽ2 on the developer's local area network. The NDK TCP/IP Stack is
middleware which enables TCP/IP based network connectivity for console based
video games for PlayStationŽ2.
Associated Component(s):
None.
SCE Console:
PlayStationŽ2.
Third Party Software Notices/Terms and
Conditions:
SN Systems is licensed to use
certain software pursuant to the following licenses:
(1) the Free Software Foundation Inc's GNU General Public Licence
("GPL") as documented in the file COPYING (supplied with the
Software). The terms of this SUL do not apply to software covered by this
license;
(2) the Free Software Foundation Inc's GNU Library General Public Licence
("LGPL") as documented in the file COPYING.LIB (supplied with the
Software). The terms of this SUL do not apply to software covered by this
license; and
(3) the NEWLIB license as documented in the file COPYING.NEWLIB. The terms of
this SUL do not apply to software covered by this license.
(4) SN Systems is licensed to use the KADAK KwikNet Software porting kit
pursuant to a license entered into with KADAK Products Limited. SN Systems
gives no warranty as to the ownership of the KADAK KwikNet Software porting kit
to the Licensee.
Additional or Amended Terms to the SUL:
The Licensee may not incorporate
the NDK TCP/IP Stack in to any completed Product to be released. Breach of this
condition will be deemed to be a repudiatory breach incapable of remedy and
will enable SN Systems to terminate this Agreement on notice to the Licensee
with immediate effect. If the Licensee wishes to incorporate the NDK TCP/IP
Stack into a Product to be released then it must enter into a separate licence
with SN Systems on payment of a further fee.