Last updated May 2, 2018

VIVEPORT ARCADE SOLUTION AGREEMENT

This Viveport Arcade Solution Agreement (“Agreement”) contains the terms and conditions that govern Your access to and use of the Arcade Solution (defined below) and is a legally binding contract between You or the entity or company You represent (“You” or “Your”) and HTC Corporation and/or one or more of its affiliates (“HTC”). This Agreement is effective on the date You click to accept or when You begin use of the Arcade Solution, whichever event occurs first (the “Effective Date”). You represent that You are lawfully able to enter into this Agreement (e.g. are competent and of legal age). If You agree to be bound by this Agreement on behalf of Your company or other entity, You represent that You have full legal authority to bind Your company or such entity to this Agreement. Capitalized terms used herein shall have the meanings assigned to them in the body of this Agreement or in Section 12.
  1. ARCADE SOLUTION AND SERVICES
    1. The “Arcade Solution” is HTC’s content management and distribution platform for Arcades and includes, as applicable, Software, Content, and related services made available by HTC pursuant to the terms of this Agreement.
    2. You may access and use the Arcade Solution, and may download and install the Software and Content in accordance with this Agreement. For proper functioning of the Arcade Solution, You will need additional equipment (e.g. computers, virtual reality systems, software, and internet access) that meets system and compatibility requirements. These system and compatibility requirements may change from time to time. Your ability to access and use the Arcade Solution, as well as the performance of the Arcade Solution may be affected by these factors. These system requirements and the associated costs are Your responsibility.
    3. To access and use the Arcade Solution, You must have one or more Vive systems and You will be required to establish an account. You are responsible for understanding and complying with all licenses, warranties, safety materials and instructions accompanying Your Vive systems. You agree to provide HTC with current, complete and accurate information in the creation of Your account. Your account will be limited to Your Territory. In the event You operate in more than one Territory, You will be required to set up additional accounts. You must keep Your account information confidential and not authorize any third party to use Your account. You are responsible for all activities that occur under Your account, including any usage or purchases made through Your account. You will promptly notify HTC about any possible misuse of Your account or other security incident related to the Arcade Solution at the following e-mail address: security@htc.com.
    4. Content is available to You through the Arcade Solution for use by You and Your Customers pursuant to the terms herein. Content available through the Arcade Solution may vary depending on Territory.
    5. Fees charged to Customers for access to Content through the Arcade Solution are at Your sole discretion. You are responsible for all Customer access and use of the Arcade Solution and for collection of all fees associated therewith.
    6. You agree to comply with all laws, rules, and regulations applicable to Your use of the Arcade Solution and agree to comply with all usage guidelines provided by HTC.
    7. HTC will provide reasonable technical support for the Arcade Solution.
  2. PURCHASING CONTENT AND ARCADE POINTS
    1. You may build Your Content library in the Arcade Solution through the purchase of Content (on a monthly license fee basis or otherwise), or through the purchase of Arcade Points. HTC may set a minimum purchase amount or minimum number of Arcade Points that must be purchased in order to activate Your account.
    2. Content availability and prices in the Arcade Solution are subject to change at HTC’s discretion. Promotional pricing offers may also be presented from time to time.
    3. HTC may use a third-party payment processor to process sales in the Arcade Solution and/or allow an authorized reseller to manage and control the sales and purchase experience (collectively “Third-Party Payment Provider”). Purchase of Content or Arcade Points will be subject to and in accordance with any additional terms of sale presented to You at the time of purchase, if any. If any additional terms of sale are between You and HTC’s Third-Party Payment Provider, then You agree that HTC will be a third-party beneficiary to those terms of sale and is entitled to the rights and benefits thereunder and may enforce the provisions thereof as if HTC is a party thereto.
    4. By purchasing Content or Arcade Points in the Arcade Solution, You authorize HTC or its Third-Party Payment Provider to facilitate the purchase of that Content or Arcade Points, to use the payment method, and, where applicable to store the payment related information Your provide. You may be billed for any purchased Content or Arcade Points: (i) in advance, (ii) at the time of purchase or sign up; (iii) shortly after purchase or sign-up; or (iv) on a recurring basis for monthly license fees, as indicated at the time You purchase the monthly license (see Section 2(g) below for cancellation terms). In the event the payment method You designate cannot be verified, is invalid, or is not otherwise acceptable, HTC or its Third-Party Payment Provider may suspend or cancel Your order or remove access to Content. HTC reserves the right to refuse or cancel orders at any time and in its sole discretion.
    5. You are solely responsible for all amounts payable associated with purchases made using Your account. Amounts payable under this Agreement will be made without setoff or deduction. You agree to pay any sales, value-added or other similar taxes imposed by applicable law. You are responsible for any taxes due with respect to Your purchase or use of Content.
    6. HTC strives to be as accurate as possible and to eliminate errors in the Arcade Solution. However, HTC does not represent or warrant that any Content descriptions or pricing information are accurate, complete, reliable, current, or error-free. In the event of an error, HTC or its Third-Party Payment Provider reserves the right to correct such error and revise Your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.
    7. If You purchase Content on a monthly license fee basis, that monthly license will be provided to You on a recurring basis for use through the Arcade Solution, and You agree to pay for that monthly license on a recurring basis until You terminate it through the designated cancel monthly license process in the Arcade Solution, or until the Content is no longer offered by HTC or the applicable licensor. Cancellation will become effective at the conclusion of the pre-paid monthly license period. If the price of Your monthly license controlled by HTC increases, HTC will provide You with at least thirty (30) days prior notice of the increase. If You do not agree to pay the increased price, You must immediately cancel Your monthly license through the designated cancel monthly license process. In some cases, HTC or the applicable licensor may cancel Your recurring monthly license unless You agree to re-subscribe at the new price.
    8. Current pricing for Arcade Points is listed in the Arcade Solution. Arcade Point pricing may be revised by HTC from time to time by posting a notification in the Arcade Solution. Updated pricing will be effective on the date specified in the notice, which will be no sooner than thirty (30) days after the new rates are posted in the Arcade Solution. Purchased Arcade Points will be managed through Your account. When Arcade Points are used, the Arcade Solution tracks usage of eligible Content and Arcade Points are deducted from Your account on a metered, time-based basis (e.g. per-minute, per-hour, or similar) as Content is used on each Vive system.
    9. At the time of purchase of Arcade Points, HTC hereby grants You a non-exclusive, non-transferable, revocable, limited license to use the Arcade Points for Your commercial use exclusively through the Arcade Solution, subject to the terms of this Agreement and Your compliance with these terms. Arcade Points are not redeemable for money or monetary value from HTC or any other person or entity, except as otherwise required by applicable law. While You may “buy” or “purchase” Arcade Points, You do not legally “own” them and the amounts of the Arcade Points do not refer to any credit balance of real currency or its equivalent. Any currency balance shown in Your account does not constitute a balance of real currency or reflect any stored value but instead constitutes a measurement of the extent of Your limited license. Neither HTC nor any other person or entity has any obligation to exchange Arcade Points for anything of value, including, but not limited to, real currency. HTC may engage in actions that may impact the perceived value or purchase price, if applicable, of Arcade Points at any time, except as prohibited by applicable law. The licenses granted hereunder to Arcade Points will terminate upon termination of this Agreement and as otherwise provided herein.
    10. You are not allowed to transfer Arcade Points, for example, by selling, gifting, or trading them nor are You allowed to sublicense, trade, sell or attempt to sell Arcade Points outside of the Arcade Solution. Except as otherwise prohibited by applicable law, HTC and its licensors retain all right, title, and interest in and to the Arcade Points.
  3. CONFIDENTIALITY, SECURITY AND DATA PRIVACY
    1. To create Your account and use the Arcade Solution, You may be required to provide information about Yourself (e.g. entity name, account ID, VAT number/Tax ID, address, contact information, and billing details). Your account is an HTC Account and is subject to the HTC Account Terms and Conditions (https://www.htcsense.com/legaldoc/terms-and-conditions). You shall use all physical administrative, and technical controls, screening and security procedures and other safeguards to securely administer access and use of Your account. HTC’s privacy policy explains how HTC treats Your personal data and protects Your privacy when using the Arcade Solution. HTC may provide Your personal information to third parties for the purposes of processing Your transactions and/or enabling Content in the Arcade Solution. HTC is not responsible for how third-party Content may collect, access, use, or disclose Your personal information.
    2. The Arcade Solution may collect certain usage statistics including but not limited to information on how the Arcade Solution is being used. In addition, the Arcade Solution may collect the following types of data to help ensure the proper functioning of the Arcade Solution: (i) Vive and computer hardware and software specifications and serial number or other identifiers connected with the Arcade Solution, (ii) Vive and Arcade Solution performance and use data, (iii) Your IP address and related network information, and (iv) Your account transaction record. HTC’s collection and use of this data will be in accordance with the HTC Privacy Policy whenever applicable.
    3. You will provide all necessary disclosures to Your account administrator, Customers and end users with respect to the privacy and security of any data collected, used, stored, transferred, or processed in connection with use of the Arcade Solution (including, if necessary, the HTC Privacy Policy) and such disclosures shall not contain any material omissions. You will be responsible for complying with Your privacy policies and all applicable laws in Your collection, usage, storage, and transfer of account administrator, Customer and end user data.
  4. TERM, TERMINATION, AND SUSPENSION
    1. The term of this Agreement will commence on the Effective Date and remain effective until terminated by You or HTC as set forth herein.
    2. You may terminate this Agreement at any time for any reason by providing us with thirty (30) days’ written notice, cancelling Your account and terminating all access to the Arcade Solution. HTC may terminate this Agreement at any time for any reason by providing You thirty (30) days’ written notice.
    3. HTC may suspend Your access to the Arcade Solution immediately if we determine: (i) Your use of the Arcade Solution poses a security risk or may otherwise adversely impact the Arcade Solution; (ii) Your use of the Arcade Solution may be fraudulent or subject HTC or any third party to liability; (iii) You are in breach of this Agreement; (iv) You are delinquent in Your payments to HTC or its Third-Party Payment Provider; or (v) in order to comply with the law or a government request.
    4. If Your access to the Arcade Solution is suspended or terminated for any reason: (i) You remain responsible for any amounts due associated with Your account and no refunds, partial or otherwise, will be provided; and (ii) the licenses granted hereunder to Arcade Points will be suspended or terminated.
  5. PROPRIETARY RIGHTS
    1. HTC and its affiliates and licensors own the title, copyright, and other intellectual property rights in the Arcade Solution and Content (and all rights embodied therein) and reserve all rights not expressly granted to You in this Agreement.
    2. During the term of this Agreement and conditioned upon Your full compliance with all the terms and conditions herein, HTC grants to You a limited, revocable, non-sublicensable, non-transferable, non-exclusive, license in the Territory to (i) install and use the Software and Content controlled by HTC only in object code form on Your Arcade computer(s), and (ii) access and use the Arcade Solution; in each case, only for the Permitted Uses and for the applicable license period or for so long as HTC has rights to provide you with the Content. “Permitted Uses” means access and use of the Arcade Solution at Your Arcade location in accordance with the terms herein to help You operate Your Arcade and make Content available for use by Your Customers. You do not obtain any rights other than those explicitly provided herein, including intellectual property rights.
    3. Certain Content may be provided pursuant to a separate license or additional terms and conditions, and some Content may be provided by third parties. HTC is not the licensor of Content provided by third parties (“Third-Party Content”). Third-Party Content is solely provided pursuant to an end user license agreement between You and the provider of the Third-Party Content. In the event of any conflict between that end user license agreement and the provisions of this Agreement, this Agreement will govern. You agree that HTC will be a third-party beneficiary to any end user license agreement for Third-Party Content and is entitled to the rights and benefits thereunder and may enforce the provisions thereof as if HTC is a party thereto.
    4. If You are not provided an end user license agreement when You access, use, or purchase Third-Party Content, then the following license terms will apply to Your use of such Third-Party Content: (i) the third party providing the Third-Party Content is the licensor of the Content; and (ii) that third party grants You a limited, non-exclusive, non-transferable, revocable license to access and use the Third-Party Content only for the Permitted Uses for the applicable license period, or for as long as the applicable third party has rights to provide You the Third-Party Content.
    5. Third-Party Content providers may collect information about You when You use their Third-Party Content. These third parties have their own privacy policies. We encourage You to review the applicable privacy policy prior to purchasing Third-Party Content.
  6. LIMITATIONS ON USE

    You may not (i) decompile, decipher, disassemble, reverse engineer, disable, tamper with or otherwise work around technical limitations of the Arcade Solution, except as expressly permitted by applicable law notwithstanding this limitation; (ii) modify or make any derivative works of the Arcade Solution in whole or in part; (iii) remove any proprietary notices or labels on the Arcade Solution, or any copy thereof; (iv) use the Arcade Solution, to infringe the rights of HTC, its affiliates, or any third party; or (v) make use of the Arcade Solution in any manner not permitted by this Agreement.

  7. WARRANTIES AND DISCLAIMERS
    1. THERE ARE IMPORTANT HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS FOR USE OF THE VIVE SYSTEMS USED WITH THE ARCADE SOLUTION WHICH ARE AVAILABLE AT VIVE.COM. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THESE WARNINGS AND INSTRUCTIONS. HTC MAY UPDATE OR REVISE THESE WARNINGS AND INSTRUCTIONS, SO PLEASE REVIEW THEM PERIODICALLY. ADDITIONAL HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS MAY BE PROVIDED BY THIRD PARTY LICENSORS IN RELATION TO THEIR CONTENT. YOU ARE SOLELY RESPONSIBLE FOR PROVIDING ADEQUATE WARNINGS AND INSTRUCTIONS TO YOUR CUSTOMERS AND COMPLYING WITH ALL APPLICABLE LAWS IN THE OPERATION OF YOUR BUSINESS.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ARCADE SOLUTION, CONTENT AND ARCADE POINTS, ARE PROVIDED “AS IS” AND “AS AVAILABLE AND THE ENTIRE RISK OF USE REMAINS WITH YOU. HTC AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, 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 ARCADE SOLUTION, CONTENT, OR ANY ARCADE POINTS: (I) WILL MEET YOUR REQUIREMENTS OR WILL WORK WITH ANY THIRD-PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES; (II) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (III) OR ANY INFORMATION OR CONTENT OBTAINED THROUGH IT WILL BE ACCURATE, COMPLETE, OR RELIABLE, INCLUDING TIME OR USAGE TRACKING; OR (IV) OR THAT ANY DEFECTS OR ERRORS THEREIN WILL BE CORRECTED.
  8. INDEMNIFICATION

    You will defend, indemnify, and hold harmless HTC, its directors, officers, employees, agents, partners, suppliers, and licensors from any third party claim or demand, including reasonable attorneys’ fees, relating to or arising from (i) Your violation of the terms and conditions of this Agreement, (ii) any disputes between You and Your Customers, (iii) damage to tangible property, bodily injury or death sustained as a result of the operation of Your Arcade or any use thereof, and (iv) Your violation of applicable law.

  9. LIMITATIONS OF LIABILITY

    IN NO EVENT WILL HTC OR ANY HTC SUPPLIER OR LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE ARCADE SOLUTION OR ARCADE POINTS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF HTC AND ITS SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU PAID HTC UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM.

    UNLESS THE FOLLOWING LIMITATION IS PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).

  10. GOVERNING LAW AND VENUE

    This Agreement shall be construed and enforced in accordance with and shall be governed by the laws of the State of Washington, without regard to conflict of law or choice of law principles or the UN Convention on contracts for the international sale of goods, and notwithstanding the location of the parties. Venue and jurisdiction for any dispute arising under this Agreement shall lie in the state and/or federal courts located in King County, Washington.

  11. MISCELLANEOUS
    1. HTC may amend the terms of this Agreement from time to time. You should regularly check the Arcade Solution site for notice of any modifications. Modifications will become effective, and will be deemed accepted 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). Your continued access to or use of the Arcade Solution following the effective date of the revised terms means that You accept and agree to the revised terms. If You do not agree with the modifications, You must terminate Your use of the Arcade Solution and this Agreement, which will be Your sole and exclusive remedy.
    2. If You provide oral or written comments, suggestions, ideas, plans, notes, and drawings, or other information about the Arcade Solution or related services (“Feedback”), HTC is free to use, disclose, reproduce, license, or otherwise distribute that Feedback, without any obligations to You.
    3. HTC is not liable for any delay for failure to perform any obligation under the Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, civil disorder, labor disputes or other industrial disturbances, forces of nature, acts of terrorism or war, and orders of government.
    4. The parties are independent contractors and are not employees, agents or legal representatives of the other party. Neither is authorized to bind the other, act as an agent for the other or otherwise act in the name of or on behalf of the other party.
    5. As applicable, each party will comply with all relevant export laws and regulations in connection with this Agreement.
    6. You shall not assign or otherwise transfer this Agreement without the prior written consent of HTC.
      The Parties hereto acknowledge that this Agreement is not intended to and shall not create any third party beneficiaries.
    7. 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.
    8. This Agreement constitutes the entire, final, complete and exclusive agreement between You and HTC and supersede all previous agreements or representations, written or oral, with respect to the subject matter of this Agreement. You and HTC expressly agree that the terms of this Agreement shall control over any additional, different, or conflicting terms. Notwithstanding the foregoing, if there is any conflict between this Agreement and any other agreement between You and HTC which pertains to the same subject matter and which was duly signed by authorized signatories of both parties, then such duly signed agreement shall control to the extent of any conflict.
    9. If HTC provides a translation of the English version of this Agreement, the English language version of the Agreement shall control in the event of any conflict.
    10. Sections 5(a) and (d) and 6-12 will survive any expiration or termination of this Agreement.
    11. HTC may provide any notice to You under this Agreement by posting such notice on the Arcade Solution site or sending an email to any address associated with your Arcade account. All notices to HTC must be by personal delivery or overnight courier (effective when received) 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: Legal Department
       308 Occidental Avenue South, Suite 300
       Seattle, Washington 98104
       United States

  12. DEFINITIONS

    “Arcade” means an arcade, internet cafe, movie theater, shopping mall or other venue acquiring virtual reality content through the Arcade Solution for use by its Customers.

    “Arcade Points” means a limited license to use content currency that You may redeem through the Arcade Solution.

    shall have the meaning set forth in Section 1(a) of this Agreement.

    “Content” means content including applications, games, video, audio, data or images made available to Arcades and Customers through the Arcade Solution, including third party content.

    “Customer(s)” means an Arcade’s on-premises customers who will be accessing Content through the Arcade Solution.

    “Effective Date” shall have the meaning set forth in the preamble of this Agreement.

    “Software” means the PC host software and PC client software that can be installed and acts as a control and management center for all Vive systems connected to the Arcade Solution.

    “Territory” means the country in which Your Arcade is located and doing business.

    “Vive(s)” or “Vive systems” means compatible Vive equipment or a compatible third-party device if approved by HTC.