In order to participate in the beta testing of EverQuest®, you must read and accept the terms of use and license agreement below. Please read the TERMS OF USE AND LICENSE AGREEMENT closely. By clicking the "I AGREE" button below, you agree to be legally bound by the terms of this agreement.
TERMS OF USE AND LICENSE AGREEMENT
(BETA TESTING OF A PRE-RELEASE GAME)
Sony Online Entertainment Inc. ("SOE") has designed and developed and is the publisher of a software product entitled EverQuest (the "Game"). SOE intends to distribute the Game and establish a Beta Test program (the "Beta Program") to, among other things, allow a limited number of people to test the features, capabilities and performance of one or more prerelease version(s) of the Game (the "Beta Software") and provide feedback and comments to SOE.
This TERMS OF USE AND LICENSE AGREEMENT (this "Agreement") is by and between SOE and the Beta tester ("You" or "Recipient").
By clicking the "I AGREE" button below:
(1) You promise that you are eighteen (18) years of age or older, and are not a principal, employee, agent, independent contractor, officer or director of a developer or publisher of video or computer games and are entering into this Agreement on a completely voluntary basis with no expectation of consideration, remuneration or any form of compensation whatsoever other than what is expressly provided for in this Agreement. You understand and agree that Beta Program accounts are available only to adults or, in their discretion, their minor child. If you are a minor, your parent(s) or guardian(s) must complete the registration process, in which case they will take full responsibility for all obligations under this Agreement. By clicking the "I AGREE" button below, you represent that you are an adult and are either accepting this Agreement on behalf of yourself or your child. You may not transfer or share your Account with anyone, except that if you are a parent or guardian, you may permit one child to use the Account instead of you (in which case you may not use that Account). You are liable for all activities conducted through the Account, and parents or guardians are liable for the activities of their child. Corporations and other entities are not eligible to procure Accounts;
(2) You acknowledge that SOE may, in its discretion and at any time before or during the Beta Program, accept or reject your application for the Beta Program (or terminate your participation therein), and if you are accepted SOE is willing to provide the Beta Software (as defined herein) for evaluation and testing in accordance with the terms and conditions set forth in this Agreement;
(3) You acknowledge that SOE may, in its discretion, charge a fee for the Beta Software and/or participation in the Beta Program, that you can only access the Beta Program provided you pay the applicable Internet connection fees and your participation in the Beta Program is contingent on your payment of such fee(s);
(4) SOE may, in its sole discretion, reschedule the start date or end date of the Beta Program at any time; and
(5) You agree to all of the terms of the Agreement set forth above and below.
AGREEMENT
1. License Terms.
1.1 License Grant. SOE grants You the non-transferable, non-exclusive, revocable, limited right to install the Beta Software onto a single Macintosh computer for Recipient's personal use for testing, analysis, and evaluation of the Beta Software. Recipient may not use, copy, modify, sell, auction, loan, lease, rent, distribute, perform, display, transmit, transfer or disclose any part of the Beta Software except as provided in this Agreement. Recipient may only use the Beta Software for testing and evaluation purposes as set forth in Section 1.4 below. All other rights are expressly reserved to SOE. The Beta Software is to be delivered to Recipient by SOE following the acceptance of this Agreement by Recipient, unless SOE elects, in its sole discretion, to discontinue the Beta Program or terminate this Agreement with You and remove You from the Beta Program. SOE shall have no obligation to deliver any future revisions or versions of the Beta Software.
1.2 License Restrictions. Recipient shall not:
(a) Sublicense to, transfer, distribute or permit use of the Beta Software by, any third party;
(b) Reverse engineer, decompile, or disassemble the Beta Software;
(c) Make copies of the Beta Software other than one (1) copy for back-up purposes to be used solely as a replacement for the original copy, provided that Recipient includes on the back-up copy all copyright and other notices that are included on the Beta Software; and
(d) Export the Beta Software in violation of the export control laws of the United States of America and other countries.
1.3 Indemnification. During the Term of this Agreement, and after termination or expiration of the Agreement, Recipient (a) agrees to indemnify, defend and hold harmless, and (b) hereby releases, SOE and its direct and indirect parent, subsidiary and sister corporations, and their respective officers, directors, employees, agents and licensors, from and against any losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of or in connection with the use of the Beta Software, and all other services or activities related thereto, or by reason of the breach of the warranties and representations of Recipient hereunder.
1.4 Testing and Evaluation. Recipient hereby agrees to perform all of the following: (a) to provide such hardware, operating system software, internet access software, and other materials necessary to properly operate the Beta Software to comply with the reasonable requests of SOE from time to time regarding testing; and (b) from time to time, to provide feedback, suggestions and comments to SOE on the functionality (including but not limited to its operation and capabilities) and performance (including, but not limited to, bug reports and test results) of the Beta Software. All of Recipient's feedback and comments shall be the sole and exclusive property of SOE, and SOE shall have the perpetual right to use all or part of the Recipient's feedback or comments in any manner or media now known or hereafter devised.
1.5 Personally Identifiable Information; Monitoring; Privacy Issues. Recipient acknowledges and agrees that SOE may ask him or her, as a condition to participation in the Beta Program, certain personally identifiable information ("Personal Information"). SOE's retention and use of all Personal Information shall be subject to SOE's posted privacy policy, as that policy may be modified by SOE in its discretion from time to time. Recipient acknowledges that any and all Beta Software character data is stored and is resident on SOE's servers, and any and all communications that he or she makes within the Beta Software (including, but not limited to, messages solely directed at another player or group of players) traverse through SOE's servers, may or may not be monitored by SOE personnel and, accordingly, Recipient has no expectation of privacy in any such communication or in any communications as described in Section 4.3 herein, except for any personal data of Beta Tester both collected and controlled by SOE personnel, as provided under applicable national data protection laws and international treaties. Recipient acknowledges and agrees that SOE may transfer such information to the United States or other countries or may share such information with SOE's licensees and agents in connection with the Game.
1.6 Term of the Agreement. The term of this Agreement shall commence on the date the Agreement is agreed to by Recipient and submitted by Recipient to SOE and shall continue thereafter until the commercial release of the Game by SOE, unless earlier terminated as set forth in this Agreement or extended by mutual agreement of the parties.
1.7. Expiration or Termination of the Agreement. This Agreement shall expire upon SOE's termination of the Beta Program. Recipient's participation in the Beta Program, and the grant of license herein, may be terminated by SOE at any time, for any reason or for no reason, in SOE's sole and absolute discretion, by providing written or emailed notice to Recipient. Recipient may, at any time and for any reason or for no reason, terminate his or her participation in the Beta Program by providing written or emailed notice to SOE. The Beta Program will be terminated upon the earlier of (a) SOE's written or emailed notice to Recipient or (b) the commercial release of the Game. The termination of Recipient's participation in the Beta Program and/or the termination of the Beta Program, however, shall not modify or supersede the survival provision in Section 5.1 below.
2. Ownership. Except for the non-exclusive, non-transferable, revocable, limited license expressly granted hereunder, SOE retains all rights, title and interests in and to the Game and the Beta Software and all copies thereof, and all game character data in connection therewith. The Game and Beta Software are copyrighted and is protected by United States and other national copyright laws and international treaty provisions. Recipient acknowledges that the Game and Beta Software contain valuable trade secrets of SOE and that SOE owns all intellectual property rights in and to the Game and Beta Software, including, without limitation, all patent rights, copyrights, inventions, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto. Recipient may not remove the copyright and other proprietary rights notices from the Beta Software. Recipient agrees that this Agreement shall be retained with all printed and electronic copies of the Beta Software and documentation constituting the Beta Software. Recipient agrees to prevent any unauthorized copying of the Beta Software. Except for the non-exclusive, non-transferable, revocable, limited license as expressly provided herein, SOE does not grant Recipient any express or implied right in any patents, copyrights, trademarks, or trade secret information of SOE. In accordance with Section 1.4, Recipient agrees that SOE owns all rights, title, and interests in any and all of Recipient's feedback and comments, without any remuneration, compensation or credit to Recipient. To the extent that any of the rights assigned herein cannot presently be assigned under applicable law, Recipient agrees to assign such rights at such time as the rights are capable of being assigned. Recipient agrees at SOE's request to execute such further documents and to do such further acts as may be necessary or desirable to document, perfect, register or enforce SOE's ownership of any of the rights, title and/or interests hereunder, in whole or in part including, without limitation, execution of a copyright assignment in a form provided by SOE in its sole discretion. If Recipient fails or refuses to execute any such documents, Recipient hereby appoints SOE as Recipient's attorney-in-fact, which appointment is coupled with an interest and is irrevocable, to act on Recipient's behalf and to execute, deliver, record and file such documents. The rights granted, assigned and/or to be assigned by Recipient hereunder are granted for the entire universe and shall inure in perpetuity, and, as set forth above, no further consideration shall be payable to Recipient at anytime in connection therewith. Recipient will acquire no right to use, and will not use without SOE's prior written consent, the names, characters, images, artwork, designs, trade names, copyrighted materials, trademarks or service marks of SOE or its related or subsidiary companies, employees, directors, officers, shareholders, assigns, successors, licensors or licensees: (a) in any advertising, publicity, marketing, promotion or on any website; or (b) in any manner other than in accordance with this Agreement.
3. Injunctive Relief. To the extent permitted by applicable law, Recipient acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that SOE shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain Recipient, from such breach or threatened breach. Nothing in this Section 3 shall be construed as preventing SOE from pursuing any and all remedies available to it, including the recovery of money damages from Recipient.
4. No Warranty; No Liability For Damages; No Support; Character Data.
4.1 No Warranty from SOE; Warranty from Recipient. Recipient acknowledges that the Beta Software is a pre-release version and is not a final Game. RECIPIENT ACKNOWLEDGES THAT THE BETA SOFTWARE MAY WELL CONTAIN ERRORS AND DEFECTS. THE BETA SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
Recipient states and warrants to SOE that he/she is not bound by any agreement, or commitment of a similar or other nature whatsoever prohibiting the execution and performance of this Agreement and the full execution of each of its requirements.
4.2 No Liability For Damages. IN NO EVENT SHALL SOE, ITS DIRECT AND INDIRECT PARENTS, SISTER AND SUBSIDIARY CORPORATIONS, OR EMPLOYEES, AGENTS, OFFICERS AND/OR DIRECTORS OF ANY OF THE ABOVE, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE GAME, EVEN IF ANY OF THE ABOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, no warranty is made that the Beta Software will generate programs with the characteristics or specifications desired by Recipient or that the Beta Software will be uninterrupted or error-free. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
4.3 No Support. SOE does not provide any support for the Beta Software. However, SOE may provide an e-mail address and/or a passworded board for Recipient to send any questions and/or comments regarding the Beta Software. SOE does not, however, make any representations or warranties as to the accuracy of any statements or advice provided in response to Recipient's e-mail(s) and/or board postings.
4.4 Test Environment. Recipient acknowledges that the Beta Program is a test environment, that Game characters and/or character data will be frequently wiped or modified at SOE's sole discretion, and that - notwithstanding any fee that Recipient may be charged for participation in the Beta Program - Beta Program Game characters and/or character data shall likely not be exported into the Game once the Game is commercially released.
5 Miscellaneous.
5.1 Survival. The provisions of this Agreement which by their nature survive the termination or expiration of this Agreement shall continue in full force and effect even after (i) the Beta Program has been terminated or completed and/or (ii) Recipient's participation in the Beta Program has been terminated.
5.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of California excluding conflict of law rules and principles. The Courts of the county of San Diego shall have exclusive jurisdiction to determine the validity, construction and performance of this Agreement and the legal relations between the parties hereto. Recipient hereby waives any claim that such venue is improper or inconvenient.
5.3 Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby.
5.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. No changes to this Agreement by Recipient shall be valid or enforceable absent a writing detailing the change and signed by both SOE and Recipient. SOE reserves the right to change the terms of this Agreement at any time by notifying Recipient via e-mail of the changed terms. All such changes by SOE will be effective upon notice and Recipient's continued participation in the Beta Program after such notice will constitute Recipient's acceptance of, and agreement to be bound by, those changes.
In order to participate in the Beta Program, You must accept ALL OF THE ABOVE TERMS of this Agreement. If you do not accept, you will not be allowed in the Beta Program.
Please click on one of the buttons below.
EverQuest is a registered trademark of Sony Computer Entertainment America Inc. in the United States and/or other countries. SOE and the SOE logo are registered trademarks of Sony Online Entertainment Inc. in the United States and/or other countries. © 2003 Sony Computer Entertainment America Inc. All Rights Reserved.