Last updated: 3/10/2016
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE REVIEW SECTION 11
. This Agreement is between HTC Corporation (or based on where you live, one of its affiliates) and You (an individual) for the Vive Phone Companion Application, including all associated media, printed or electronic documentation, content, functionality, or services, Updates, and support services for the application, unless other terms accompany those items (collectively, the “Application”). This Agreement, together with any additional terms provided to You in using the Application (collectively, “Additional Terms”), which may be amended from time to time, is a legal agreement that governs Your access to and use of the Application. Your continued access to or use of the Application following the posting of revised terms means that You accept and agree to any revised terms. You are expected to check this page each time you access or use the Application so that You are aware of any changes, as they are binding on You. If there is a conflict between the terms in this Agreement and the Additional Terms, the terms in the Additional Terms will govern. You and HTC are collectively are referred to as “We.”
The Application allows You to pair Your Device via Bluetooth to the HTC Vive and, once paired, to receive phone notifications (incoming calls, text messages, and calendar notifications) while in the VR environment (“Content”). The Application and all uses of Your data in providing Content will follow the
During the term of this Agreement and conditioned upon Your full compliance with all the terms and conditions of this Agreement, HTC grants to You a personal, non-transferable, non-exclusive license to install and use the Application in object code form in order to view Content for Your non-commercial purposes on portable devices owned by You (Your “Device”).
The license granted in Section 1 is conditioned upon Your compliance with the following limitations. You are not permitted to:
work around any technical limitations in the Application or to use the Application in an attempt to, or in conjunction with any device, program or service designed to, circumvent technical measures employed to control access to, or the rights in, a Content file or other work;
reverse engineer, decompile, decipher, disassemble or otherwise attempt to access source code of the Application, except and only to the extent that applicable law expressly permits, despite this limitation;
publish, rent, lease, lend, or sublicense the Application or Content;
distribute, transfer, disclose or otherwise provide the Application or Content to any third party;
modify or make any derivative works of the Application or Content, in whole or in part;
remove any proprietary notices or labels on the Application or Content or any copy thereof;
use the Application or Content for any commercial purpose;
use the Application or Content to infringe the rights of HTC, its affiliates, or any third party or in any way that does not comply with all applicable laws; or
make any use of the Application or Content in any manner not permitted by this Agreement.
RESERVATION OF RIGHTS AND OWNERSHIP.
HTC, its affiliates and its licensors and suppliers own the title, copyright, and other intellectual property rights in the Application and Content and reserve all rights not expressly granted to You in this Agreement. The Application and Content is protected by copyright and other intellectual property laws and treaties. The Application may contain third-party software that is subject to open source or third-party license terms (“Third Party Terms”). Your use of the Application and Content is subject to any Third Party Terms included in the Application or Content. In the even of the conflict between this Agreement and any Third Party Terms, this Agreement will govern. HTC, the HTC logo, Vive Phone Companion, and other HTC product and service names referenced in the Application are the trademarks of HTC Corporation and its affiliates. Any other company names, product names, service names and logos referenced in connection with the Application and Content may be the trademarks of their respective owners.
THIRD PARTY RELATIONSHIPS.
SUPPORT AND UPDATES.
HTC has no obligation to and may not provide support for the Application or Content. If HTC does provide updates, supplements, or add-on components to the Application after the date You obtain Your initial copy of the Application (collectively, “Updates”), this Agreement will apply to the Updates. If HTC provides additional terms along with any Update, those terms will apply to the Update. You agree that HTC may automatically check Your version of the Application and may automatically send Your Device updates to the Application. HTC reserves the right to discontinue Your access to the Application or any Content provided or made available to You through use of the Application. HTC may, at its sole discretion, release subsequent versions of the Application and require You to obtain and use the most current version.
This Agreement will automatically terminate upon Your breach of any of the terms and conditions of this Agreement. If terminated, You must immediately destroy or disable all copies of the Application and Content, and the following Sections of this Agreement will survive: Sections 3 and 7 through 16.
DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION, CONTENT, AND ANY SUPPORT (IF ANY) ARE 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 THAT THE APPLICATION OR CONTENT: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) OR ANY INFORMATION OR CONTENT OBTAINED THROUGH IT WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (D) OR THAT ANY DEFECTS OR ERRORS THEREIN WILL BE CORRECTED. ALL CONTENT AND OTHER MATERIAL YOU DOWNLOAD OR OBTAIN THROUGH THE APPLICATION (INCLUDING CONTENT) IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS THAT THESE TERMS CANNOT CHANGE. IN PARTICULAR, TO THE EXTENT LOCAL LEGISLATION IMPLIES STATUTORY TERMS WHICH CANNOT BE EXCLUDED, THOSE TERMS ARE DEEMED INCORPORATED INTO THIS AGREEMENT BUT HTC’S LIABILITY FOR A BREACH OF THOSE STATUTORY IMPLIED TERMS IS LIMITED IN ACCORDANCE WITH AND TO THE EXTENT PERMISSIBLE UNDER THAT LEGISLATION.
DISCLAIMER OF CERTAIN DAMAGES.
IN NO EVENT WILL HTC OR ANY SUPPLIER OR LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL; SPECIAL; INCIDENTAL; INDIRECT; PUNITIVE DAMAGES; FOR LOSS OF PROFITS, BUSINESS, GOODWILL, ANTICIPATED SAVINGS, OR USE; LOSS OR CORRUPTION OF DATA, CONFIDENTIAL INFORMATION, OR OTHER INFORMATION; BUSINESS INTERRUPTION; PERSONAL INJURY; 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, THE APPLICATION, CONTENT, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, EVEN IF HTC OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION 8 WILL BE INTERPRETED AS EXCLUDING LIABILITY WHICH CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. IF YOU LIVE, OR ARE OTHERWISE SUBJECT TO THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 8 MAY NOT APPLY TO YOU.
Limitation of Liability and Exclusive Remedies.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER THIS SECTION 9, 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, THE APPLICATION, CONTENT, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT WILL BE TO RECOVER THE ACTUAL DAMAGES YOU INCUR BASED UPON REASONABLE RELIANCE ON THE APPLICATION UP TO FIVE DOLLARS (U.S. $5.00).
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT, THE APPLICATION, CONTENT, OR THE PROVISION OR FAILURE TO PROVIDE SUPPORT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. EXCEPT FOR THE EXCLUSIVE REMEDY IN THE FOLLOWING SENTENCE, THESE ACTUAL MONEY DAMAGES WILL BE YOUR SOLE AND EXCLUSIVE REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION 9 WILL BE INTERPRETED AS EXCLUDING LIABILITY WHICH CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. IF YOU LIVE, OR ARE OTHERWISE SUBJECT TO THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 MAY NOT APPLY TO YOU.
You will defend, indemnify, and hold HTC, its directors, officers, employees, agents, partners, suppliers, and licensors harmless and will keep them indemnified from any third party claim or demand, including reasonable attorneys’ fees, relating to or arising from (a) Your use of the Application or Content; (b) any violation by You of this Agreement; or (c) Your violation of any another party’s rights or applicable law.
The Application was designed for systems that do not require fail-safe performance. You may not use the Application in any device or system in which a malfunction of the Application would result in foreseeable risk of injury or death to any person. This includes operation of nuclear facilities, aircraft navigation or communication systems and air traffic control.
GOVERNING LAW AND JURISDICTION FOR RESOLVING DISPUTES.
The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
North and South America.
If You acquired the Application in North or South America, You are contracting with HTC America, Inc. and Washington state law governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under state consumer protection laws, unfair competition laws, and in tort will be governed by of the state where You live in the U.S.A., or, if You live outside of the U.S.A. (but within North or South America), the laws of the country where You live.
IF YOU ACQUIRED THE APPLICATION IN THE U.S.A., WE EACH AGREE THAT ALL CLAIMS AND DISPUTES ARISING OUT OF OR RELATED TO THE APPLICATION OR THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US, WILL BE RESOLVED IN KING COUNTY, WASHINGTON BY BINDING ARBITRATION BY A SINGLE NEUTRAL ARBITRATOR OR, IF THE CLAIM QUALIFIES, IN SMALL CLAIMS COURT. WE EACH ALSO AGREE THAT THE AGREEMENT AFFECTS INTERSTATE COMMERCE SO THE FEDERAL ARBITRATION ACT APPLIES INCLUDING WITH RESPECT TO ANY QUESTION OF WHETHER A CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION (DESPITE THE CHOICE OF GOVERNING LAW IN THIS SECTION). WE EACH AGREE WE WILL ONLY PURSUE ARBITRATION ON AN INDIVIDUAL BASIS AND WILL NOT PURSUE ARBITRATION IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE BASIS, REGARDLESS OF THE APPLICATION OF PROCEDURAL RULES BY ANY ARBITRATOR. IF ANY COURT OR ARBITRATOR HOLDS THAT THE CLASS ACTION WAIVER IS UNENFORCEABLE, THEN THE DISPUTE MUST BE BROUGHT IN A STATE OR FEDERAL COURT IN KING COUNTY, WASHINGTON. WE EACH ALSO AGREE THAT FOR ARBITRATED CLAIMS THE ARBITRATOR’S AWARD WILL BE FINAL AND BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION.
For each dispute or claim, We will each give the other the opportunity to resolve it by sending the other a written description along with relevant documents, supporting information and the proposed resolution. Notice to HTC America, Inc. will be sent to the contact in Section 16. HTC will attempt to notify You in writing if HTC has Your email or mailing address. If HTC does not have Your address, HTC will post a notice in the legal notices section on HTC’s website at
. We each agree to negotiate disputes and claims in good faith. If We are unable to resolve the dispute or claim within 60 days after HTC receives Your notice or HTC mails or posts its notice to You, We each may pursue the dispute or claim in arbitration or, if the claim qualifies, in small claims court. If You want to arbitrate, to begin arbitration You must send a letter requesting arbitration and describing Your claim to the contact listed for HTC America, Inc. in Section 17. The American Arbitration Association (AAA) will arbitrate all disputes and the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply. We each are responsible for our own respective costs relating to the arbitration, except that HTC America, Inc. will pay the arbitration administrative or filing fees, including the arbitrator fees. An arbitrator may award on an individual basis any relief authorized by law, including injunctive or declaratory relief and attorneys’ fees.If You live outside the U.S.A., then to the maximum extent permitted by applicable law You irrevocably agree that for any disputes arising out of or relating to this Agreement exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.
Europe, Middle East, and Africa.
If You acquired the Application in Europe, the Middle East or Africa, You are contracting with HTC Europe Co., Ltd. and the laws of England and Wales governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be governed by the laws of the country where You live. You irrevocably agree to the exclusive jurisdiction and venue of the courts in London, England and Wales for any disputes arising out of or in connection with this Agreement. If applicable law prevents jurisdiction and venue in London England, then to the maximum extent permitted by applicable law You irrevocably agree that for any disputes arising out of or relating to this Agreement exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.
Australia, New Zealand, and Asia (except for the Middle East).
If You acquired the Application in Australia, New Zealand, or Asia (except for the Middle East), You are contracting with HTC Corporation and the laws of Taiwan govern the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be governed by the laws of the country where You live. You irrevocably designate the Taipei District Court as the court of first instance having jurisdiction over any disputes arising out of or in connection with this Agreement. If applicable law prevents the designation of the Taipei District Court as the court of first instance, then to the maximum extent permitted by applicable law You irrevocably agree that for any disputes arising out of or relating to this Agreement exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.
This Agreement does not change Your rights under the laws of the country in which You reside if the laws of Your country do not permit it to legally change Your rights. You may have rights under the laws of the country in which You reside that are in addition to, or different from, the rights set forth in this Agreement.
COMPLIANCE WITH LAW; EXPORT REGULATIONS.
You will comply with all national and international laws, rules and regulations that apply to the Application and Your use of the Application, including the U.S. Export Administration Regulations (to which the Application is subject), as well as end-user, end-use, and destination restrictions issued by U.S. or other governments. You acknowledge that the Application is of U.S. origin.
The section titles in this Agreement are used solely for the parties’ convenience and have no legal or contractual significance. 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 may not assign, transfer or sublicense Your rights (if any) under this Agreement. This Agreement will be binding upon all of HTC’s successors and assigns.
This Agreement, and any Additional Terms, are the entire agreement for the Application and Content. Internet-based services and support services (if any) may be subject to additional terms.
If you have any questions about this Agreement please direct all notices and correspondence to:
Attn: Legal Department
No 88, Section 3
New Taipei City, Taiwan, 231
HTC America, Inc.
Attn: Legal Department
308 Occidental S., Suite 300
Seattle, WA 98001
With a copy to: HTC Corporation at the address above.
HTC Europe Co., Ltd.
Salamanca, Wellington Street
Slough, Berkshire SL1 1YP,
With a copy to: HTC Corporation at the address above.