VIVEPORT DEVELOPER DISTRIBUTION AGREEMENT

Last updated April 5, 2016.

VIVEPORT DEVELOPER DISTRIBUTION AGREEMENT

This Viveport Developer Distribution Agreement (“Agreement”) is a contract between you (“You” or “Your”) and HTC Corporation (“HTC”). Hereinafter, You and HTC may be individually referred to as a “Party” and collectively as the “Parties.”

This Agreement is a legally binding contract between You and HTC, and together with any additional terms (“Additional Terms”) provided to You by HTC when using the Store (defined below) governs Your access to and use of the Store to post, display, offer for sale, and distribute Products (defined below).

In order to use the Store to post, display, offer for sale, and distribute Products, You must first agree to this Agreement by clicking to accept where this option is made available to You. You may not distribute Products in the Store if You do not accept this Agreement and any Additional Terms. You represent and warrant that You are of legal age and otherwise competent to be contractually bound by this Agreement. If You agree to be bound by this Agreement on behalf of Your company or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept the Agreement or use the Store on behalf of Your employer or other entity.

  1. THE VIVEPORT STORE. HTC’s Viveport Store (the “Store”) is an online marketplace that HTC has created and operates which allows registered persons and companies approved by HTC (“Developers”) to post, display, offer for sale and distribute software, content, services, applications, and other digital materials directly to users through the Store (“Products”).

  2. DISTRIBUTING PRODUCTS THROUGH THE STORE
    • In order for You to distribute Your Products through the Store, You must (i) fully and accurately complete the Developer registration process, (ii) pay the Developer registration fee, and (iii) acquire and maintain a valid Developer Account, which will be provided to You by HTC in its sole discretion. A “Developer Account” is a publishing account issued by HTC to You as a Developer that enables You to post, display, offer for sale, and distribute Your Products through the Store. You must also acquire and maintain a valid payment account to facilitate the collection and remittance of payments on Your behalf if You want to charge a fee for Your Products.
    • You may not use the Store to post, display, offer for sale, and distribute Products unless You are approved by HTC, in its sole discretion, as a Developer in good standing.
    • You are responsible for uploading Your Products to the Store, providing required Product information to users including, but not limited to, an End User License Agreement and a Privacy Policy, and accurately disclosing all permissions and consents necessary for Your Product to function. Products that are not properly uploaded or otherwise fail to comply with these requirements will not be distributed through the Store.
    • You may upgrade or update Your Product. However, HTC may suspend Your right to upgrade or update Your Product if the frequency exceeds HTC’s ability to process and approve them in a timely fashion, or HTC otherwise determines in its sole discretion to limit such upgrades or updates.
    • Users are allowed unlimited reinstalls of each Product distributed via the Store at no additional charge.

  3. PRICING AND PAYMENTS
    • Free Products
      • You may choose to distribute Your Products for free. If the Product is free, You will not be charged a Transaction Fee (as such term is defined below).
      • If You initially distribute a Product for free but then want to collect fees after the free trial period expires, You must collect all fees for the full version of the Product through the Store’s payment processing system.
      • If You distribute a Product for free You agree to comply with all applicable guidelines and/or other applicable law relating to the offering of free Products (including those specified by the United States Federal Trade Commission).
    • Chargeable Products
      • You may choose to distribute Your Products for a price. In such case, Your Product will be displayed to users on Your behalf at prices You establish, except that each of Your Products must be priced in accordance with any pricing guidelines established by the Store. You must set the price for Your Products only in currencies and increments supported by HTC or its Third-Party Payment Provider (as such term is defined below).
      • If in-app purchases are supported by the Store, the following terms shall apply: In-app purchases may be priced at any amount You establish so long as they are within any pricing guidelines established by the Store. In-app purchases must be made using only virtual currency purchased from the Store.
      • The sales price You set for Your Products including any of its in-app purchases, when collected by HTC, will determine the amount of payment You will receive. A Transaction Fee will be charged and subtracted from the sales price, and the remainder will be remitted to You, less any applicable taxes, refunds, charge backs, currency charges, or other reasonable related expenses.
      • HTC’s standard “Transaction Fee” is 30% of the sales price of Your Product including any of its in-app purchases. However, if You elect to distribute Your Products in China through HTC’s optional “Premium Distribution Service” (which helps obtain certain publisher licenses necessary for You to distribute Your Products in China and may include other promotional benefits); then, for sales of Your Products in China, the Transaction Fee is 50% of the sales price of Your Product including any of its in-app purchases. For the avoidance of doubt, if You distribute Your Product(s) in China but do not use HTC’s Premium Distribution Service, You will be solely responsible to obtain these publisher licenses and HTC’s standard Transaction Fee of 30% will apply.
    • Subscription Bundles
      • The Store may offer users the ability purchase monthly subscriptions where users can access and use an assortment of bundled Products curated by HTC in exchange for a monthly recurring subscription fee established by HTC.
      • If You elect to distribute Your Products through such a subscription bundle and if Your Product is used by a user in a given month as part of its subscription to that bundle, then, for that usage, in lieu of the revenue sharing model described in Section 3(b) above, Your compensation for each such user will be determined as follows: You will be allocated Your proportionate share of the sales price HTC sets and collects from that user for that subscription bundle. Your proportionate share of that sales price will be pro-rated based on factors determined by HTC such as: the number of Products from the subscription bundle that were downloaded, launched, accessed, used, or experienced in that month by that user, and/or amount of time in that month a Product from the subscription bundle was used by that user in that month; all as reasonably determined by HTC. HTC’s methodology to determine the proportionate share may vary among categories of Products in the subscription bundle. From time to time, HTC may revise its methodology to determine Developers’ proportionate share of a subscription bundle’s sales price.
      • A “Transaction Fee” will be charged and subtracted from Your proportionate share of the subscription bundle’s sales price and the remainder will be remitted back to You less Your share of any applicable taxes, refunds, charge backs, currency charges, or other reasonable related expenses.
      • For these subscription bundles, the Transaction Fee is 40% of Your proportionate share of the bundle’s sales price (and 40% of the sales price of any in-app purchases attributable to Your Product), except for bundles sold in China if You have elected to distribute Your Product through HTC’s Premium Distribution Service, in which case, the Transaction Fee is 50% of Your proportionate share of the bundle’s sales price (and 50% of the sales price of any in-app purchases attributable to Your Product).
    • Promotional Programs
      The Store may offer You the ability to participate in promotional programs intended to help achieve broader adoption rates of Your Product by discounting Your Product’s price. If You elect to participate in a promotional program for Your Product by clicking the accept button where this option is made available to You, then You agree that HTC may discount the price of Your Product up to the percentage specified for that promotional program for up to the period specified for that promotional program. HTC may, in its sole discretion, elect to forego all or part of its Transaction Fee from sales of Your Product to lower Your Product’s price for users.
    • Other Payment Related Terms
      • HTC may use a third-party payment processor to process sales through the Store and/or allow an authorized reseller to manage and control the sales and purchase experience in the Store (collectively “Third-Party Payment Provider”).
      • On a monthly basis (subject to and as further described in the click-through agreement You establish with HTC’s Third-Party Payment Provider), HTC or its Third-Party Payment Provider (i) will report revenues generated by Your Products, after deducting the applicable Transaction Fee(s) and any applicable taxes, refunds, charge backs, currency charges, or other reasonable related expenses, and (ii) will issue payments for amounts then owed to You under this Agreement. Payments will be through a single currency supported by the Store. Transaction Fees may be revised by HTC from time to time.
      • HTC may display the price for Products on the Store to users in their native currency, but HTC is not responsible for the accuracy of currency rates or conversion. You are responsible for all currency adjustment fees and state, local, or national taxes applicable to the sale of Your Products in the Store.
      • HTC or its Third-Party Payment Provider shall report all sales of Products on the Store to the relevant taxing authorities and shall collect and remit certain taxes on Your behalf where required by applicable law. If HTC or its Third-Party Payment Provider, under mandatory tax law in the jurisdiction in which the payment is made, is required to withhold certain amounts or a certain portion of the payment due to You, HTC or its Third-Party Payment Provider may deduct such mandatory amounts to the extent as required under the applicable tax law from all payments to You, and remit such amounts to the appropriate tax authority. HTC or its Third-Party Payment Provider shall provide You with copies of all necessary documents (e.g. tax receipts received from the applicable tax authority) in order for You to be able to claim and receive a foreign tax credit in an amount corresponding to the amount withheld by HTC or its Third-Party Payment Provider. Notwithstanding the foregoing, (i) You are still responsible to determine if Your Products are taxable and the applicable tax rate for each taxing jurisdiction where You distribute Your Product, and (ii) You are still responsible for remitting such taxes to the appropriate taxing authority.
      • All payments received by Developers for Products distributed via the Store and all payments received by Developers for in-app purchases must be processed through the Store’s payment processing system.
      • HTC reserves the right to handle refund requests for Products as HTC deems appropriate in its sole discretion. This may mean a full refund of the price paid by the user. HTC or its Third-Party Payment Provider shall manage refund requests for Products in an ethical manner, in compliance with applicable laws, and in accordance with any refund policies it may establish. As set forth above, amounts refunded back to users from the purchase of Your Products will, at HTC’s option, be deducted from amounts owed to You under this Agreement or charged back to You (in which case You agree to immediately pay the charge back).
      • Additional payment related terms and conditions are set forth in the click-through agreement You establish with HTC’s Third-Party Payment Provider.

  4. PROPER USE OF THE STORE
    • You may use the Store only in accordance with this Agreement and the Additional Terms. Your use of the Store must comply with all applicable law, regulations, and generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from all relevant countries).
    • You must not use the Store to distribute Products that are unlawful in any capacity or otherwise violate HTC’s Code of Conduct, content guidelines, rating or similar obligations, or other terms of service as may be updated by HTC from time to time in its sole discretion.
    • If You use the Store to distribute Products in China, You must comply with the Content Guidelines for China as set forth in Attachment 1 to this Agreement.
    • You must not engage in any activity, including the development or distribution of Products, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of HTC, the Store, or any third party including, but not limited to, HTC Vive users. You must not use customer information obtained from the Store to sell or distribute Products outside of the Store.
    • You must not use the Store to distribute or make available any Product which has a purpose that facilitates the distribution of software applications and games outside of the Store.
    • If You breach any obligation set forth in this Section or become subject to any governmental inquiry about Your Product, You must provide HTC with prompt written notice describing the breach or the nature of the governmental inquiry.

  5. YOU ARE SOLELY RESPONSIBLE FOR YOUR PRODUCT
    • You are solely responsible for any Products You distribute through the Store and for the consequences of Your actions by doing so, including any loss or damage which HTC may suffer as a result.
    • You are solely responsible for any breach of Your obligations under this Agreement, any Additional Terms, any applicable third party contract or terms of service to which You are a party, or any applicable law or regulation, and for the consequences of any such breach, including any loss or damage which HTC or any third party may suffer as a result.
    • You are solely responsible to protect Your Products from and against illegal or unauthorized reproduction or copying by users or by any other persons.
    • You must provide an appropriate and conspicuous warning to users if there are health and safety concerns specific to Your Product.

  6. PRODUCT SUPPORT
    • You are solely responsible for support and maintenance of Your Products and any complaints about Your Products.
    • You are solely responsible to ensure Your Products’ compatibility with the virtual reality products and services for which they are intended.
    • You must expeditiously resolve bugs, errors, and complaints about Your Products encountered by HTC and/or users.
    • You must maintain an active support email address, which shall be prominently displayed to users within a detail page within Your Product.
    • You must ensure Your Products are fully tested and have passed any quality assurance metrics required by HTC prior to uploading Your Products to the Store.
    • You must prominently display a Terms of Use and/or End User License Agreement and Privacy Policy for Your Products and must honor any promises or obligations made to users with respect to the Products and collection and use of user data under Your policies and agreements.

  7. PRODUCT PLACEMENT AND RATINGS
    • HTC reserves the right, in its sole discretion, (i) to determine whether or not to display Your Product in the Store, (ii) to determine the date Your Product is first displayed in the Store, (iii) to remove Your Product from the Store at any time with or without advance notice, and (iv) to display Your Product in the Store in any order or level of prominence as it deems appropriate in its sole discretion.
    • The Store may allow users to rate Products. Product ratings may be used to help determine the placement of Products in the Store. You agree not to post fake ratings or otherwise manipulate ratings for Your Products or any other Products on the Store or outside of the Store in any manner. Your Products may receive user ratings with which You may not agree.
    • You agree to obtain an ESRB (or similar) rating for Your Product at Your own expense if so required by HTC or applicable law. HTC may require that You post any such rating in the Product description made available to users prior to download or purchase of the Product.

  8. PRODUCT OWNERSHIP AND LICENSES
    • Except for the rights, title, and interest granted to HTC under this Agreement, (i) You retain all right, title and interest in Your Products including any intellectual property rights which subsist in Your Products, and (ii) nothing in this Agreement shall create any right of ownership or license in and to the other Party's intellectual property rights, and each Party shall continue to independently own and maintain its intellectual property rights.
    • You grant to HTC and its affiliates a non-exclusive, worldwide, sub-licensable, and royalty-free license to: copy, perform, display, modify, distribute, and use the Products (i) in accordance with the publishing options You selected when You uploaded Your Product into the Store, (ii) in connection with the operation and marketing of the Store, the HTC Vive, and other HTC products and services, and (iii) to make improvements to the Store, HTC Vive, and any other HTC products and services.
    • You will grant to the user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Product on computers, mobile devices (if applicable), and on the HTC Vives or other virtual reality systems (i) in accordance with the publishing options You selected when You uploaded Your Product into the Store, and (ii) in accordance with Your current end user license agreement and Section 2(e).
    • After termination of this Agreement, Your Products will not be displayed on the Store, but HTC may retain and use copies of the Product (i) in the part of the Store where previously purchased or downloaded applications are stored on behalf of users and (ii) for support of the Store, the HTC Vive, and/or users who previously purchased the Product.
    • You may, but are not required, to submit oral or written comments or suggestions regarding HTC’s products and services (“Feedback”). If You do submit Feedback to HTC, You agree that HTC is free to use, disclose, reproduce, license or otherwise distribute the Feedback without any obligations or restrictions of any kind, including intellectual property rights.

  9. TRADEMARKS
    • The term “Trademarks” as used herein means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each Party, respectively, as owned (or licensed) by such Party from time to time. Each Party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Trademarks. Except to the limited extent expressly provided in this Agreement, neither Party grants, nor shall the other Party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Trademarks of the other Party.
    • You grant to HTC and its affiliates a limited, non-exclusive, worldwide, sub-licensable license to display Your Trademarks that You submit to HTC for the distribution and sale of Your Products through the Store and to otherwise fulfill its obligations under this Agreement. In addition, for purposes of marketing the presence, distribution and sale of Your Product in the Store, HTC and its affiliates may include Your Trademarks that You submit to HTC: (i) in any advertising formats outside the Store when mentioned along with the HTC Vive and/or other Store Products; (ii) in presentations; and/or (iii) in customer lists (which may be publicly disseminated).
    • If You discontinue the distribution of specific Products on the Store, HTC will cease further use of the discontinued Products’ Trademarks pursuant to Section 10(a), except as necessary to allow HTC to effectuate Section 2(e) and 8(d).
    • Nothing in this Agreement gives You a right to use any of HTC’s or its affiliates’ Trademarks.

  10. REMOVAL OF YOUR PRODUCTS FROM THE STORE
    • You may request the removal of Your Product(s) from future distribution via the Store by designating which of Your Products are to be removed and clicking the “remove content” button within Your Developer Account or an equivalent process specified bv HTC. HTC will promptly remove Your Product after receipt of Your request. Removing Your Products from future distribution via the Store does not (i) affect the license rights of users who have previously purchased or downloaded Your Products, (ii) remove Your Products from the computers or other devices of users who have downloaded them, or from any part of the Store where previously purchased or downloaded applications are stored on behalf of users, or (iii) change Your obligation to deliver or support Products or services that have been previously purchased or downloaded by users. Notwithstanding the foregoing, in no event will HTC be required to maintain on any portion of the Store (including, without limitation, the part of the Store where previously purchased or downloaded applications are stored on behalf of users) any Product where removal was due to (w) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, (x) an allegation of defamation or actual defamation, (y) an allegation of violation, or actual violation, of any third party’s right of publicity or privacy, or (z) an allegation or determination that such Product does not comply with applicable law.
    • If Your Product is removed from the Store pursuant to the last sentence in Section 10(a) or pursuant to Section 10(c), and a user purchased such Product within a year before the date of takedown, at HTC’s request, HTC may require You to refund to the affected user all amounts paid by such user for such affected Product.
    • While HTC does not undertake an obligation to monitor the Products or their content, if HTC is notified by You or otherwise becomes aware and determines in its sole discretion that Your Product or any portion thereof or Your Trademarks (i) violates the intellectual property rights or any other rights of any third party; (ii) violates any applicable law or is subject to an injunction; (iii) is obscene or otherwise violates HTC’s Code of Conduct, content guidelines, rating or similar obligations, or other terms of service as may be updated by HTC from time to time in its sole discretion; (iv) is being distributed by You improperly; (v) may create liability for HTC or third parties; (vi) is deemed by HTC to have a virus or is deemed to be malware, spyware or have an adverse impact on HTC’s or a third party’s network or systems; (vii) violates the terms of this Agreement or any Additional Terms; or (viii) the display of the Product is impacting the integrity of HTC’s servers (i.e., users are unable to access such content or otherwise experience difficulty); then HTC may remove the Product from the Store or suspend access to the Product at its sole discretion.
    • HTC reserves the right to suspend and/or bar any Developer or Product from the Store at any time for any reason with or without advance notice.

  11. CONFIDENTIAL INFORMATION
    • You are responsible for maintaining the confidentiality of any developer credentials that may be issued to You by HTC or which You may choose Yourself. You are solely responsible for all Products that are uploaded to the Store or other actions that are undertaken using Your Developer Account. HTC may limit the number of Developer Accounts issued to You or to Your company or organization. You shall use all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to securely administer access and use of Your Developer Account and protect against unauthorized access to or use of Your Developer Account or the Store.
    • You must not use, disclose, publish, disseminate or otherwise communicate, directly or indirectly, in whole or in part, at any time or in any manner, any Confidential Information of HTC other than as expressly set forth herein without the prior written consent of HTC unless (i) You are required to disclose such Confidential Information pursuant to applicable law, regulation or valid order issued by a court or governmental agency of competent jurisdiction, and (ii) prior to such disclosure You use best efforts to promptly notify HTC in writing and provide reasonable assistance, at HTC’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
    • “Confidential Information” means all non-public information, in any form or media that is related to HTC’s business and its current, future and proposed technology, products and services, including ideas, concepts, trade secrets, specifications, layouts, designs, appearances, know-how, product roadmaps, market strategies, samples of products, research, development, financial information, customer lists, business forecasts, sales information, marketing plans and business plans and information about customer(s) or vendors.

  12. USER DATA
    • You agree that if You use the Store to distribute Products, You will protect the privacy and legal rights of users. You agree to only collect and use user data in accordance with the terms and conditions of Your End User License Agreement and Privacy Policy You publish in conjunction with Your Products and applicable laws. You shall ensure that each user receives sufficient notification prior to any collection of their data. This notice must clearly and expressly state that their data shall be collected by You and is subject to Your End User License Agreement and Privacy Policy. You must also ensure that each user provides affirmative consent prior to such collection and any use of the data by You or any third party on Your behalf. You agree to take all steps required and reasonably necessary (including appropriate physical, technical, and organizational measures) to protect such user data in Your possession or control against loss and unauthorized or unlawful access, use, modification, disclosure, processing or other misuse. You agree to implement and comply with industry-standard measures with respect to the technical and physical security of such user data. You agree to ensure that its collection, use, storage, processing, distribution, or transfer (including cross-border transfers), and Your information technology platforms and systems on which such user data is collected, used, stored, processed, distributed, or transferred are at all times compliant with applicable law (including all privacy laws and laws governing data security) and the terms and conditions of Your published use and privacy policies. Your standard of care to comply with Your obligations under the foregoing sentences shall conform to the requirements of applicable laws and industry standard security measures with respect to the sensitivity of the user data in Your possession or control. If users provide Your Product with HTC account information, Your Product may only use that information to access the user’s HTC account when, and for the limited purposes for which, the user has given You permission to do so.
    • In order to innovate and improve the Store, HTC may collect certain usage statistics from the Store and Your Products, including but not limited to, information on how the Store and Your Products are being used. The data collected is examined in the aggregate to improve the Store for users and Developers and is maintained in accordance with HTC’s Privacy Policy.

  13. TERMINATION
    • The term of this Agreement starts on the date You click to accept it and shall continue until terminated by either You or HTC as set out below.
    • You may terminate this Agreement for any reason by removing all Your Products from the Store as described in Section 10 and providing HTC with thirty (30) days prior written notice of such termination. Such notice shall be sent to HTC at the HTC addresses set forth in Section 19 below.
    • HTC may terminate this Agreement at any time for any reason with or without advance notice to You.
    • In the event of any termination of this Agreement, (i) HTC will stop displaying Your Products in the Store except as described in Section 2(e) and 8(d), and (ii) You must stop all further access to and use of the Store as well as Your Developer Account.

  14. WARRANTIES AND DISCLAIMER OF WARRANTIES
    • You represent and warrant that You have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Product. If You use third-party materials, You represent and warrant that You have the right to distribute the third-party material in the Product. Notwithstanding anything to the contrary, You must have the right to distribute and exploit Your Products posted on the Store throughout the world. Obtaining and maintaining such worldwide rights with respect to the Products is Your sole responsibility. You agree that You will not submit material to the Store that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to submit the material.
    • You represent and warrant that Your Product shall not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door or other software code or routine designed to (or resulting in): (i) damage, destroy or alter any software, hardware, or network; (ii) reveal, damage, destroy or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software, hardware, or network.
    • DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE STORE IS AT YOUR SOLE RISK AND THE STORE IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” AND THE ENTIRE RISK OF USE AND PERFORMANCE, REMAINS WITH YOU. HTC AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. IN PARTICULAR, HTC, ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY (A) THAT THE STORE WILL MEET YOUR REQUIREMENTS OR WILL WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES; (B) THAT THE STORE WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) ANY INFORMATION OR CONTENT OBTAINED THROUGH THE STORE WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (D) THAT ANY DEFECTS OR ERRORS IN THE STORE WILL BE CORRECTED. ALL MATERIALS YOU DOWNLOAD OR OBTAIN UNDER THIS AGREEMENT IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM.

  15. LIMITATION OF LIABILITY
    • IN NO EVENT WILL HTC OR ANY SUPPLIER OR LICENSOR OF HTC BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, BUSINESS, GOODWILL, OR ANTICIPATED SAVINGS, OR USE, LOSS, OR CORRUPTION OF DATA, CONFIDENTIAL INFORMATION, OR OTHER INFORMATION, BUSINESS INTERRUPTION, PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF, BASED ON, RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR YOUR USE OF THE STORE, EVEN IF HTC OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER THIS SECTION, HTC’S AND ITS SUPPLIERS’ AND LICENSORS’ MAXIMUM, AGGREGATE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR YOUR USE OF THE STORE WILL BE TO RECOVER YOUR ACTUAL DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE PRICE OF YOUR SUBMISSION OR REGISTRATION FEE, IF ANY, OR FIFTY U.S. DOLLARS ($50), WHICHEVER IS LESS.
    • THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT, THE STORE, OR THE PROVISION OR FAILURE TO PROVIDE SUPPORT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. THESE ACTUAL MONEY DAMAGES WILL BE YOUR SOLE AND EXCLUSIVE REMEDY.

  16. INDEMNIFICATION
    • To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless HTC, its affiliates and their respective directors, officers, employees, subcontractors, and agents, from and against any and all third-party claims, actions, suits or proceedings (each, a “Claim”), as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising out of or relating to (a) Your Product, (b) Your use of the Store in violation of this Agreement, (c) any allegation that Your Product infringes 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, (d) Your breach of the representations, warranties or covenants set forth herein, (e) damage to tangible property, bodily injury or death sustained as a result of Your Product or any use thereof, and (f) taxes related to Your distribution of Products via the Store.
    • You will not consent to the entry of a judgment or settle any Claim without HTC’s prior written consent, if such entry of judgment or settlement arises from or is part of any of any criminal action, suit, or proceeding, or contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of HTC, or requires any specific performance or non-pecuniary remedy by HTC. You will use counsel reasonably satisfactory to HTC to defend each Claim. If HTC reasonably determines that a Claim might adversely affect HTC, HTC may take control of the defense at its expense (and without limiting Your indemnification obligations). Your obligations under this Section 16 are independent of Your other obligations under the Agreement.

  17. GOVERNING LAW AND VENUE. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS OR THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. YOU HEREBY IRREVOCABLY CONSENT TO AND WAIVE ANY OBJECTION TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED AT KING COUNTY, WASHINGTON WITH RESPECT TO ANY CLAIMS, SUITS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. UNLESS THE FOLLOWING LIMITATION IS PROHIBITED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OTHERWISE IT WILL BE BARRED.

  18. MODIFICATIONS TO THE AGREEMENT AND/OR ADDITIONAL TERMS. HTC may make modifications to this Agreement and/or the Additional Terms at any time by posting a notification on the Store site. You should regularly check for notice of any modifications. HTC may, but need not, also notify Developers of such modifications via email. Modifications will become effective, and will be deemed accepted by Developers, (i) immediately for those who become Developers after the notification is posted, or (ii) for pre-existing Developers, on the date specified in the notice, which will be no sooner than thirty (30) days after the modifications are posted (except modifications required by law which will be effective immediately). If You do not agree with the modifications to the Agreement and/or the Additional Terms, You must terminate Your use of the Store, which will be Your sole and exclusive remedy. You agree that Your continued use of the Store constitutes Your agreement to the modified terms of this Agreement and the Additional Terms. If there is a conflict between the terms in this Agreement and the Additional Terms, this Agreement will govern unless the Additional Terms expressly override a specific section of this Agreement.

  19. CONTACT INFORMATION. Please direct all notices and correspondence to:

      HTC Corporation
      Attn: General Counsel
      No. 88, Section 3, Zhongxing Road
      Xindian Dist., New Taipei City 231
      Taiwan

      with a copy to:

      HTC America, Inc.
      Attn: VP and Deputy General Counsel
      308 Occidental Avenue South
      Suite 300
      Seattle, Washington 98104
      United States

  20. GENERAL
    • HTC may use sub-contractors or consultants in connection with the performance of its rights and obligations hereunder, which may include allowing such sub-contractors or consultants to have access or use of Your Products, data, and materials provided hereunder provided that such sub-contractors or consultants shall be subject to no less restrictive obligations as those set forth herein.
    • You are an independent contractor and not an employee, agent, partner, joint venturer, representative, broker or principal of HTC for any purpose.
    • HTC’s failure to act with respect to a breach by You does not waive its rights to act with respect to subsequent or similar breaches. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.
    • If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, the remaining terms, covenants and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated.
    • You acknowledge and agree that each member of the group of companies of which HTC is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement 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 this Agreement.
    • YOU MUST COMPLY WITH ALL NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS THAT APPLY TO YOUR USE OF THE STORE, INCLUDING THE U.S. EXPORT ADMINISTRATION REGULATIONS, AS WELL AS END-USER, END-USE, AND DESTINATION RESTRICTIONS ISSUED BY U.S. OR OTHER GOVERNMENTS.
    • You may not assign any of Your rights or obligations under this Agreement, whether by operation of law or otherwise, without HTC’s prior, written consent, except that You may assign all of Your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of Your assets, provided You give HTC written notice of any such assignment no later than ten (10) business days before such assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
    • The obligations in Sections 8 and 9 (solely as necessary or useful to permit HTC to effectuate Section 2(e) and 8(d)) and Sections 11-20 will survive any expiration or termination of this Agreement.
    • This Agreement and the Additional Terms constitute the entire agreement between You and HTC with respect to Your use of the Store and completely replaces any prior agreements between You and HTC in relation to the Store.

Attachment 1
Content Guidelines for China

If You use the Store to distribute Products in China, then for that distribution, Your Product and the content available within must not:

  • defy the basic principles of the constitution of China;
  • endanger the unity, sovereignty, or territorial integrity of China;
  • divulge secrets of China, endanger national security, damage the honor or benefits of China;
  • incite national hatred or racial discrimination, undermine the solidarity of China, or infringe upon its national customs or habits;
  • disturb the public order, or destroy the public stability;
  • propagate obscenity, gambling, violence, or instigate crimes;
  • insult or libel others, or infringe upon the legal rights and interests of others;
  • endanger public ethics or folk culture; or
  • contain other content prohibited by law, the government, or administrative regulations.