MESH WEB SERVICE TERMS OF USE

IMPORTANT –READ THESE “TERMS OF USE” BEFORE DOWNLOADING OR USING ANY PART OF THE SONY APP. INSTALLING OR USING ANY PART OF THE SONY APP INDICATES YOUR ACCEPTANCE OF THESE TERMS OF USE.

  1. Introduction.

The MESH WEB SERVICE, which includes the MESH HUB application, MESH SDK, all accompanying documentation, and any and all updates and modifications thereto (collectively, the “APP”) is licensed to you subject to the terms of these Terms of Use. These Terms of Use form a legally binding contract between you and Sony Corporation (“Sony”) in relation to your use of the APP.

  1. Accepting this Terms of Use.

In order to use the APP, you must first agree to these Terms of Use. You may not use the APP if you do not accept these Terms of Use. You accept these Terms of Use by: (A) clicking to accept or agree to these Terms of Use, where this option is made available to you; or (B) by actually using the APP, in which case you agree the use of the APP constitutes acceptance of these Terms of Use.

If you do not agree to these Terms of Use, Sony is unwilling to license or allow you to use the APP, and you should immediately cease using and permanently purge, delete and destroy all copies of the APP from any and all of your devices and other hardware.

You may not use the APP and may not accept these Terms of Use if you are a person barred from receiving the APP under the laws of the United States or other countries including the country in which you reside or from where you use the APP. These Terms of Use are void where prohibited by law and the right to use the APP is not granted in such jurisdictions.

If you are agreeing to be bound by these Terms of Use on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these Terms of Use. If you do not have the requisite authority, you may not accept these Terms of Use or use the APP on behalf of your employer or other entity.

You also certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to use the APP. Notwithstanding the preceding sentence, if you are the parent or legal guardian of individuals between the ages of 13 and the legal age of majority in the jurisdiction in which you reside, you may allow such individuals to use the APP solely under your supervision and only in accordance with this Terms of Use. You are responsible for such individuals’ compliance with and violations of these Terms of Use. You will not allow any individual under the age of 13 to use the APP, regardless of whether or not it is under your supervision.

  1. APP License from Sony.

The APP is being licensed to you, not sold. Subject to these Terms of Use, Sony grants you a limited, royalty-free, non-transferable, revocable and non-exclusive license to use the APP solely for the purpose of designing or developing software to run on or with Sony’s MESH product. You agree that Sony or third parties own all legal right, title and interest in and to the APP, including any Intellectual Property Rights that exist in the APP. “Intellectual Property Rights” means any and all rights under patent, copyright, trade secret, and trademark laws and international/multinational treaties, and any and all proprietary and other rights in connection therewith. Sony reserves all rights not expressly granted to you in these Terms of Use.

  1. Open Source Notice.

Notwithstanding the foregoing limited license grant, you acknowledge that the APP may include third party software subject to other terms and conditions governing the use of such software other than herein (“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. Terms and conditions applicable to Open Source Components are provided to you together with this Terms of Use and/or embedded in the APP. Please visit http://www.sony.net/Products/Linux for a list of applicable Excluded Software, if any, included in the APP from time to time, 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 notice to you, and your continued use of the Excluded Software shall constitute your continued acceptance of those modified terms and conditions. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply in lieu of the terms of this Terms of Use. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Terms of Use with respect to such Open Source Components, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Sony to make an offer to provide source code in connection with the Software, such offer is hereby made.

  1. Restrictions.

Except to the extent required by applicable third party licenses, you may not copy (except for backup purposes), modify, publish, adapt, redistribute, decompile, reverse engineer, disassemble, attempt to derive source code or create derivative works of the APP or any part of the APP. In addition, you may not share, distribute, lend, rent, lease, loan, sublicense, sell, assign, transfer or otherwise make available the APP or your rights under these Terms of Use to any third party. Use of the APP to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited.

  1. Trademarks.

Nothing in these Terms of Use gives you a right to use any of Sony’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the APP. You agree not to use the marks “Takeoff Point” or “Sony,” the Sony Logo or any other marks belonging or licensed to Sony in any way except as expressly authorized in writing by Sony in each instance. You agree that all goodwill arising out of your authorized use of Sony’s marks shall inure to the benefit of and belong to Sony.

  1. Use of the APP by You.

Other than with respect to use of any software you develop using the APP for promotional and publicity purposes, Sony agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Use in or to any software that you develop using the APP, including any intellectual property rights that exist in that software.

You agree to use the APP only for purposes that are permitted by (A) these Terms of Use and (B) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

You agree that you are solely responsible for (and that Sony has no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display through the Sony platform and/or software for the Sony platform, and for the consequences of your actions (including any loss or damage which Sony may suffer) by doing so. You agree that you are solely responsible for (and that Sony has no responsibility to you or to any third party for) any breach or violation of your obligations under this Terms of Use, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Sony or any third party may suffer) of any such breach or violation.

  1. Your MESH Credentials.

In order to gain access or use the APP, you may be required to establish an account for which you must provide Sony with true, accurate, current, and complete information about yourself and maintain/promptly update such information. You agree that you are responsible for maintaining the confidentiality of any MESH credentials that may be issued to you by Sony (including any ID and password) or which you may choose yourself and that you will be solely responsible for all usage of these credentials.

  1. Privacy and Information.

Sony’s use and sharing of your information will be in accordance with Sony’s Privacy Policy [https://support.meshprj.com/hc/en-us/articles/115004235874].

  1. Third Party Software for the Sony Platform.

If you use the APP to run software developed by a third party or that access data, content or resources provided by a third party, you agree that Sony is not responsible for such usage or content. You understand that all data, content or resources which you may access through such third party software are the sole responsibility of the person from which they originated and that Sony is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party software, data, content, or resources. You should be aware the data, content, and resources presented to you through such a third party software may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf). You may not share, modify, rent, lease, loan, sublicense, sell, assign, transfer, distribute or create derivative works based on these data, content, or resources (either in whole or in part) unless you have been specifically given permission to do so by the relevant owners. You acknowledge that your use of such third party software, data, content, or resources may be subject to separate terms between you and the relevant third party. In that case, these Terms of Use do not affect your legal relationship with these third parties.

  1. Using Sony APIs.

If you use any API to retrieve data from Sony, you acknowledge that the data may be protected by intellectual property rights which are owned by Sony or those parties that provide the data (or by other persons or companies on their behalf). Your use of any such API may be subject to additional terms of service. You may not share, modify, rent, lease, loan, sublicense, sell, assign, transfer, distribute or create derivative works based on this data (either in whole or in part) unless allowed by the relevant terms of service.

  1. Terminating these Terms of Use.

These Terms of Use will continue to apply until terminated by either you or Sony as set out below. If you want to terminate these Terms of Use, you may do so by ceasing your use of the APP and any relevant MESH credentials. Sony may at any time, immediately terminate these Terms of Use with you if Sony believes, in its sole discretion: (A) you have breached or failed to comply with any provision of these Terms of Use; or (B) Sony is required to do so by law; or (C) the partner with whom Sony offered certain parts of APP (such as APIs) to you has terminated its relationship with Sony or ceased to offer certain parts of the APP to you; or (D) Sony decides to no longer provide the APP or certain parts of the APP to users in the country in which you reside or from where you use the APP; or (E) the provision of the APP or certain APP services to you by Sony is no longer commercially viable. When these Terms of Use come to an end, any rights or obligations under these Terms of Use which by their nature are intended to survive termination or your cessation of use of the APP. Upon termination, regardless the reason, you must immediately cease using, uninstall and permanently purge, delete and destroy all copies of the APP from any and all of your devices and other hardware.

  1. Disclaimer of Warranties.

SONY AND ITS LICENSORS DO NOT PROMISE THAT THE APP (INCLUDING ITS FUNCTIONALITY OR FEATURES), OR INFORMATION THAT YOU RECEIVE FROM SONY WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APP IS AT YOUR SOLE RISK AND THAT THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM SONY. SONY CANNOT ENSURE THAT ANY FILES, INFORMATION OR OTHER DATA YOU ACCESS OR DOWNLOAD FROM THE APP WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES, AND SONY AND ITS LICENSORS DISCLAIM ANY LIABILITY RELATED THERETO. YOUR USE OF THE APP AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. SONY AND ITS LICENSORS FURTHER EXPRESSLY DISCLAIM ALL WARRANTIES, DUTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES, DUTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY AND NON-INFRINGEMENT AND ALL WARRANTIES AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN ARTICLE 42 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE, AND/OR ANY OTHER COMPARABLE STATUTE. YOUR SOLE REMEDY AGAINST SONY AND ITS LICENSORS FOR DISSATISFACTION WITH THE APP IS TO STOP USING IT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN YOU AND SONY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SONY, ITS SUBSIDIARIES AND AFFILIATES, ITS LICENSORS, OR A SONY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY, DUTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY, DUTY AND CONDITION. You understand that Sony is under no obligation to provide updates, enhancements, or corrections, or to notify you of any product or service changes that Sony may make, or to publicly announce or introduce the product(s) or service at any time in the future.

  1. Limitation of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT SONY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU ARISING FROM OR RELATED TO THIS LICENSE AGREEMENT OR THE APP UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL WHETHER OR NOT SONY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES AND LOSSES. Some jurisdictions may not allow exclusions or limitations of incidental or consequential damages, exclusions or limitations of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you in the event but only to the extent of any such disallowance.

  1. Indemnification.

To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Sony, its subsidiaries, affiliates and their respective directors, officers, employees and agents (“Indemnified Party(s)”) from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ and experts’ fees and settlement costs) arising out of or accruing from (a) your use or misuse of the APP, (b) anything you design or develop using the APP that actually or allegedly infringes or misappropriates any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by you with these Terms of Use or any law, rule or regulation. The counsel you select for defense or settlement of a claim must be consented to by Sony and/or Indemnified Party(s) prior to counsel being engaged to represent you and Indemnified Party(s). You and your counsel will cooperate as fully as required by the Indemnified Party(s) in defense or settlement of any claim. Sony and/or Indemnified Party(s) reserve the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of any Indemnified Party without the prior written consent of Sony and/or Indemnified Party(s).

  1. Changes to the APP or these Terms of Use.

From time to time, Sony may update or otherwise modify the APP, for example, but not limited to, for purposes of error correction, improvement of features, and enhancement of security features. Such updates or modifications may change or delete the nature of features or other aspects of the APP, including features you may rely upon. You hereby agree that such activities may occur at Sony’s sole discretion without liability to you, and that Sony may condition continued use of the APP upon your complete installation or acceptance of such update or modifications. Sony may add to, change, or remove any part, term, or condition of these Terms of Use as such applies to the APP at any time. Any such additions, changes, or removals or any terms posted in the APP or applicable Sony website shall apply as soon as they are made or posted. By continuing to access the APP after so made or posted, you indicate your acceptance thereto.

  1. Sony Independent Development.

Nothing in this Terms of Use will impair Sony’s right to design, develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may design, develop, produce, market, or distribute. In the absence of a separate written agreement to the contrary, Sony will be free to use any information, suggestions or recommendations you provide to Sony pursuant to this Terms of Use for any purpose, subject to any applicable patents or copyrights.

  1. Encryption; Export Control.

THE APP IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE APP. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. Without limiting the generality of the foregoing, you may not use or otherwise export or re-export the APP except as authorized by United States law and the laws of the jurisdiction in which the APP was obtained. In particular, but without limitation, the APP may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the APP, you represent and warrant that you are not located in any such country or on any such list. The APP may contain encryption technology. You acknowledge that any export of software containing encryption technology from the United States or subsequent re-export of such software or content by a person located outside of the United States requires a license or other authorization from the U.S. Department of Commerce’s Bureau of Industry and Security. You further acknowledge that the APP containing encryption technology and acquired from Sony is not intended for use by a foreign government end user. You also agree that you will not use the APP for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.

  1. Government Use.

The APP is provided with RESTRICTED RIGHTS. Use, duplication or disclosure of the APP, in whole or part, by the United States Government is subject to restrictions as set forth in subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software clause at FAR 52.227 19, and subparagraph (c)(i)(ii) of the Rights in Technical Data and Computer Software clause at DOD FAR 252.227-7013 and any comparable federal, state or local law or regulation. Manufacturer is Sony Electronics Inc., 16535 Via Esprillo, San Diego, California 92127.

  1. General Legal Terms.

These Terms of Use constitute the entire legal agreement between you and Sony and governs your use of the APP (excluding any services which Sony may provide to you under a separate written agreement), and completely replaces any prior agreements between you and Sony in relation to the APP.

You agree that if Sony does not exercise or enforce any legal right or remedy which is contained in these Terms of Use (or which Sony has the benefit of under any applicable law), this will not be taken to be a formal waiver of Sony’s rights and that those rights or remedies will still be available to Sony.

If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms of Use is invalid, then that provision will be removed from these Terms of Use without affecting the rest of these Terms of Use. The remaining provisions of these Terms of Use will continue to be valid and enforceable.

You acknowledge and agree that Sony Corporation, and each member of the group of companies of which Sony Corporation is the parent, shall be third party beneficiaries to these Terms of Use and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms of Use that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms of Use.

You may not assign or transfer these Terms of Use without the prior written approval of Sony.

These Terms of Use 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. Further, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Terms of Use.

If a Dispute arises, you agree to first give notice to us by contacting Sony Corporation at, 16535 Via Esprillo, San Diego, California 92127, Attn: Legal Department, and engaging in good faith negotiations to attempt to resolve any Dispute for at least 14 days, except that you or Sony (or any of its affiliates) may skip this informal negotiation procedure for Disputes enforcing, protecting, or concerning the validity of intellectual property rights. “Dispute” is defined as any disagreement, cause of action, claim, controversy, or proceeding between you and any Sony entity related to or arising out of the APP or this Terms of Use. Dispute is to be given the broadest possible meaning that will be enforced.

ANY DISPUTE THAT IS NOT RESOLVED THROUGH THE INFORMAL NEGOTIATION PROCESS DESCRIBED ABOVE SHALL BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION.

To begin arbitration, either you or Sony must make a written demand to the other for arbitration. The arbitration will take place before a single arbitrator. It will be administered in keeping with the Expedited Procedures of the Commercial Arbitration Rules, and the Supplementary Proceedings for Consumer-Related disputes when applicable (“Rules”) of the American Arbitration Association (“AAA”) in effect when the claim is filed. You may get a copy of AAA’s Rules by contacting AAA at (800) 778-7879 or visiting www.adr.org. The filing fees to begin and carry out arbitration will be shared between you and us, but in no event shall your fees ever exceed the amount allowable by the special rules for Consumers Disputes provided for by AAA, at which point Sony will cover all additional administrative fees and expenses. This does not prohibit the arbitrator from giving the winning party their fees and expenses of the arbitration when appropriate pursuant to the Rules. Unless you and we agree differently, the arbitration will take place in the county and state where you live, and applicable federal or state law shall govern the substance of any Dispute. The Federal Arbitration Act, 9 U.S.C. § 1, et seq., will govern the arbitration itself and not any state law on arbitration. The arbitrator’s decision will be binding and final, except for a limited right of appeal under the Federal Arbitration Act. The arbitrator may award declaratory or injunctive relief only in favor of the party seeking relief, and only to the extent necessary to provide relief warranted by that party’s individual claim. Any court with jurisdiction over the parties may enforce the arbitrator’s decision.

Despite the above, you have the right to litigate any Dispute in small claims court or other similar court of limited jurisdiction in the United States, to the extent the amount at issue does not exceed $15,000, and as long as such court has proper jurisdiction and all other requirements (including amount in controversy) are satisfied.

Despite anything to the contrary in this Terms of Use, you may reject changes made to the binding arbitration provision if: (1) you’ve already begun authorized use of the APP at the time the change was/is made; and (2) you mail written notice to the address in the immediately preceding paragraph within 30 days after the particular change was/is made. Should such a situation arise, you will still be bound by the Dispute procedures you previously agreed to and existing before the change you rejected was made.

Any Dispute determined not subject to arbitration and not initiated in small claims court will be litigated by either party in a court of competent jurisdiction in either the New York Superior Court or in the United States District Court for the Southern District of New York. Governing law for these Terms of Use is New York.

Notwithstanding the foregoing to the contrary, either party may initiate litigation immediately with respect to any matter arising out of or in connection with this Agreement for which equitable relief (or an equivalent type of urgent legal relief) is sought. You agree that any violation of or non-compliance with any provision of these Terms of Use by you will constitute an unlawful and unfair business practice, and will cause irreparable harm to Sony, its affiliates or third party licensors for which monetary damages would be inadequate, and you consent to Sony obtaining any injunctive or equitable relief that Sony deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that may be available to Sony under contract, at law or in equity.