End User Licensing Agreement

Superbrothers Audiovisual Inc. - End User License Agreement

This End User License Agreement (“EULA”) governs the user’s (“you” or “your”) use of all Superbrothers Audiovisual Inc. (“Superbrothers”) software, including any updates and modifications provided to you, (collectively, the “Software”).   This EULA is a binding legal agreement between you and Superbrothers.  Please review these terms carefully.  By purchasing, downloading or using the Software, you agree to be bound by the terms of this EULA.  If you do not agree to the terms of this EULA, you may not access or use the Software.


This EULA is between you and Superbrothers only.  Neither Sony Interactive Entertainment LLC (“SIE”) nor any Sony Interactive Entertainment group company is a party to this EULA, other than as third party beneficiaries.   Additional software license terms may apply to your use of the Software on the Sony PlayStation™ platform as set out in the SIE Software Product License Agreement [LINK www.playstation.com/en-ca/legal/softwarelicense] (the “Sony License”).  Purchase and use of items are subject to the Network Terms of Service and User Agreement.  This online service has been sublicensed to you by Sony Interactive Entertainment America. 



  1. SOFTWARE LICENSE


  1. Use of the Software.  Subject to the terms and conditions of this EULA, including without limitation the restrictions set out in Section 1.2, Superbrothers grants to you a personal, non-exclusive limited license to use the Software only on a PlayStation™ platform that you own or control (or such other system to which the Software is delivered by PlayStation Network), solely for your personal entertainment purposes.  


  1. Restrictions on Use.  As a condition of the use of the Software, you shall not, and shall not permit any other person to, directly or indirectly do any of the following: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying algorithms of the Software (or any part thereof); (b) copy, modify, adapt, translate, or create derivative works based on any portion of the Software or any related materials; (c) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any portion of the Software or make any portion of the Software available to any other person; (d) publicly perform or broadcast the Software without the express prior consent of Superbrothers; (e) use any part of the Software for timesharing or service bureau purposes; (f) tamper with the security of any portion of the Software; (g) knowingly access data on or available through the Software that is not intended for users; (h) attempt to probe, scan or test the vulnerability of any portion of the Software or to breach any security or authentication measures; or (i) use the Software to violate any applicable local, provincial, state, federal or foreign law, rule or regulation.


  1. Your Additional Responsibilities.  You are solely responsible for obtaining and maintaining, at your expense, all equipment, computers and communications required to use the Software.  You are responsible for complying with terms of this EULA governing use of the Software. You must notify Superbrothers immediately of any actual or suspected misuse or unauthorized use of Software or breach of this EULA, or of any breach of security in relation to the Software, of which you become aware.   Notifications should be sent to Superbrothers at [privacy@superbrothers.ca].  Superbrothers will promptly investigate each report, and a finding of misuse or unauthorized use may result in the suspension or termination of an offending party’s ability to use the Software.


  1. INTELLECTUAL PROPERTY RIGHTS


  1. Ownership.  The Software (including all text, files, images, video, graphics, sounds, musical works, works of authorship, links, software code in any format, data, video, chat, designs, files, works of authorship or other content therein), and all copies and portions thereof; all registered and unregistered Superbrothers trademarks, trade names, logos or service marks used in or in connection with the Software from time to time;  all improvements, enhancements, modifications and derivative works of any of the foregoing, and all intellectual property rights therein and thereto, (collectively, the “Superbrothers IP”), are and shall remain the sole and exclusive property of Superbrothers and its licensors, and are protected by domestic and international laws and treaties. You agree not to, or to cause or permit others to: (a) use any Superbrothers IP except as expressly authorized in this EULA; (b) remove any proprietary notices, markings and legends appearing on or contained in the Software; or (c) change any security or rights management technology used in connection with any Superbrothers IP.


  1. Rights Reserved By Superbrothers.  Your right to use the Software and other Superbrothers IP is limited to those expressly granted in this EULA.  No other rights with respect to the Software or any other Superbrothers IP (including all related intellectual property rights) are implied.  You agree that you will use reasonable measures to protect Superbrothers’ proprietary interests and intellectual property rights in Superbrothers IP and will comply with the terms of this EULA to protect Superbrothers’ proprietary and intellectual property rights in Superbrothers IP.  Except as Superbrothers may otherwise expressly agree in writing, any discoveries, enhancements, improvements, customizations, translations or other modifications made to, or derived from, Superbrothers IP, and all related intellectual property rights therein, shall be owned exclusively by Superbrothers.


  1. Trademarks.  You do not obtain any rights, title or interest of any kind in or to any trademarks, tradenames, logos, service marks or other markings belonging to Superbrothers.


  1. Updates and Modifications.  Superbrothers may, by automatic update or otherwise, update or otherwise modify the Software at any time, for any reason.  The terms of this EULA shall automatically apply to all such updates and modifications.


  1. Feedback.  Any suggestions, enhancement requests, unsolicited storylines, recommendations or other feedback that you provide to Superbrothers relating to the Software (collectively “Feedback”) shall become Superbrothers’ sole property. Superbrothers shall exclusively own all rights, including all intellectual property rights, in and to all Feedback. Superbrothers shall be entitled to the unrestricted use and dissemination of any Feedback for any purpose, commercial or otherwise, without acknowledgement, attribution or compensation to you or to any other party. 


  1. WARRANTY DISCLAIMER

THE SOFTWARE IS PROVIDED “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. SUPERBROTHERS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AS WELL AS THOSE ARISING BY LAW, STATUTE, USAGE OR TRADE, OR COURSE OF DEALING REGARDING OR RELATED TO THIS EULA, THE SOFTWARE, OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER OR IN CONNECTION WITH THIS EULA. SUPERBROTHERS DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR THAT IT WILL SATISFY YOUR REQUIREMENTS OR PRODUCE ANY SPECIFIC RESULTS. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. SUPERBROTHERS DOES NOT WARRANT THE ACCURACY OR SECURITY OF ANY USER DATA, INCLUDING ANY DATA GENERATED THROUGH YOUR USE OF THE SOFTWARE.


  1. LIMITATION OF LIABILITY

    1. DISCLAIMER. IN NO EVENT WILL SUPERBROTHERS BE LIABLE FOR, AND HEREBY EXPRESSLY DISCLAIMS LIABILITY FOR, ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF DATA, FINANCIAL LOSS, PERSONAL INJURY, PROPERTY DAMAGE OR SUBSTITUTE GOODS) ARISING OUT OF OR RELATED TO THE SOFTWARE OR YOUR USE OF THE SOFTWARE, HOWEVER CAUSED, INCLUDING UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT SUPERBROTHERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  YOUR SOLE REMEDY FOR ANY LOSSES, COSTS OR DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF THE SOFTWARE WILL BE TO DISCONTINUE YOUR USE OF THE SOFTWARE.


  1. LIMITATION TO THE EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON LIABILITY, IN WHICH CASE YOU AGREE THAT SUPERBROTHERS’ LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.  UNLESS PROHIBITED BY LAW, SUPERBROTHERS’, ITS DIRECTORS’, OFFICERS’ AND EMPLOYEES’ TOTAL AGGREGATE LIABILITY TO YOU ARISING UNDER OR IN CONNECTION WITH THIS EULA OR YOUR USE OF THE SOFTWARE SHALL NOT EXCEED THE LESSER OF: (A) THE AMOUNT ACTUALLY PAID TO SUPERBROTHERS IN RESPECT OF YOUR USE OF THE SOFTWARE, OR (B) ONE HUNDRED CANADIAN DOLLARS.


  1. NO SIE LIABILITY. SUPERBROTHERS IS SOLELY RESPONSIBLE FOR THE SOFTWARE AND ITS CONTENTS. IN NO EVENT WILL SIE OR ANY SONY INTERACTIVE ENTERTAINMENT GROUP COMPANY HAVE ANY LIABILITY IN RESPECT OF THE SOFTWARE LICENSED UNDER THIS EULA.  YOU AGREE THAT SIE AND EACH SONY INTERACTIVE ENTERTAINMENT GROUP COMPANY SHALL BE THIRD PARTY BENEFICIARIES TO THIS AGREEMENT, AND SHALL BE ENTITLED TO BRING AN ACTION TO ENFORCE THIS EULA AND/OR TO SEEK LEGAL REMEDIES IN THE EVENT OF A BREACH.


  1. USER INDEMNITY

You agree to indemnify, defend (at Superbrothers’ election) and hold Superbrothers harmless from and against any claims, losses, damages and expenses, including reasonable legal fees, arising from or relating to: (a) your misuse or unauthorized use of the Software; (b) your infringement, misappropriation or violation of any intellectual property rights, whether Superbrothers’ or a third party’s; (c) any violation by you of applicable laws; or (d) your use of the Software in violation of this EULA. You may not settle or compromise any indemnified claim without the prior written consent of Superbrothers, if and to the extent such settlement or compromise would result in any admission of liability or payment by Superbrothers for which it will not be indemnified by you pursuant to this provision.


  1. IN-GAME PURCHASES


Any content purchased in an in-game store will be purchased from Sony Interactive Entertainment Network Europe Limited (“SIENE”) and will be subject to PlayStation™ Network Terms of Service and User Agreement, which is available on the PlayStation™ Store.   Please check usage rights for each purchase, as these may differ from item to item.   Unless otherwise shown, content available in any in-game store has the same age rating as the game.


  1. TERMINATION RIGHTS

    1. Right to Suspend or Terminate. In addition to any other rights that it may have, Superbrothers reserves the right to suspend or terminate your license to use the Software in the event of a breach by you of any of the terms of this EULA.


  1. Effect of Suspension or Termination. In the event of the termination or suspension of this EULA: (a) your rights to use the Software shall terminate, and you will immediately cease all use of the Software; (b) you will not be entitled to a refund of any prepaid fees for the Software; and (c) any terms and conditions of this EULA which by their nature extend beyond termination, shall survive the termination, including sections 2, 3, 4, 5 and 8.


  1. GOVERNING LAW AND DISPUTE RESOLUTION

    1. Governing Law.  This EULA shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be exclusively governed by, the laws of the Province of British Columbia and the federal laws of Canada applicable in that province, as if it had been wholly performed within British Columbia, but excluding conflicts of laws provisions.  The parties expressly exclude the application of the Convention of The Hague regarding the Unification of Law Governing the International Sale of Goods (1964), and the United Nations Convention on Contracts for the International Sale of Goods (also referred to as the "Vienna Convention").


  1. Dispute Resolution.  Except as provided in Sections 8.3 and 8.4, any dispute arising under or in connection with this EULA or your use of the Software will be resolved through arbitration before a single arbitrator in accordance with the domestic or international Rules of Procedure of the BC International Commercial Arbitration Centre, as applicable.  The costs of the arbitrator will be borne equally, but each of you and Superbrothers will otherwise bear their respective costs incurred in connection with the arbitration.  The arbitrator may not award punitive or exemplary damages against either party or any other relief in excess of the limitations set forth in this EULA.  The judgment and award of the arbitrator will be final and binding on each party.  Judgment upon the award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and/or an order of enforcement as the case may be.  You may not bring an action, regardless of form, arising out of or in connection with this EULA more than twelve (12) months after the occurrence of the event giving rise to the cause of action, regardless of whether you were aware or ought reasonably to have been aware of the event.


  1. Equitable Relief.  Notwithstanding Section 8.2, in addition to any other rights that it may have, nothing in this EULA shall prevent Superbrothers from applying to a court of competent jurisdiction for injunctive or other equitable relief in the event of a breach by you of the terms of this EULA.


  1. SIE Dispute Resolution.  Notwithstanding Sections 8.1, 8.2 and 8.3, any dispute involving SIE or a Sony Interactive Entertainment Group company will be resolved in accordance with the dispute resolution provisions set out in the Sony License.



  1. MISCELLANEOUS


  1. Entire Agreement.  This EULA constitutes the entire agreement between you and Superbrothers regarding the use of the Software, and supersedes all prior agreements, warranties and understandings between you and Superbrothers.   Additional terms and conditions, including the Sony Agreement, may also apply to your use of the Software.


  1. Severability.  In the event that any provision of this EULA is determined to be unenforceable or invalid under any applicable law or by applicable court decision, such unenforceability or invalidity shall not render this EULA unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.


  1. Waiver.  The waiver by Superbrothers of a breach of any provisions of this EULA shall be in writing and shall in no way be construed as a waiver of any other breach, or of any succeeding breach of the provision or the waiver of the provision itself.


  1. United States Government End Use.  Superbrothers provides the Software, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this EULA.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Superbrothers to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.


  1. Notices.  Any notice or other significant communication given to Superbrothers pursuant to this EULA shall be in writing and sent by email to Superbrothers at [privacy@Superbrothers.ca].