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VIVEPORT TERMS OF USE

Last updated: 04/05/2016

VIVEPORT TERMS OF USE

THANK YOU FOR USING THE VIVEPORT STORE (THE “STORE”). PLEASE READ THESE VIVEPORT TERMS OF USE (“TERMS OF USE”) CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS.

BY USING THE STORE OR ANY PRODUCTS OR SERVICES AVAILABLE WITHIN, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE, DO NOT USE THE STORE. You represent and warrant that You are of legal age and otherwise competent to be contractually bound by these Terms of Use. If You are accepting these Terms of Use on behalf of Your employer, You represent and warrant that You have full legal authority to bind Your employer to these Terms of Use. If You do not have the requisite authority, You may not accept these Terms of Use or use the Store or any Products on behalf of Your employer.

THESE TERMS OF USE CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE REVIEW SECTION 27.

These Terms of Use, together with any additional terms provided to You by HTC when using the Store (“Additional Terms”), each which may be amended from time to time, are a legal agreement between you, an individual or entity (“You” and “Your”), and HTC Corporation, or based on where You live one of its affiliates (“HTC”), that governs Your access to and use of the Store. Your continued access to or use of the Store 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 Store so that You are aware of any changes, as they are binding on You. If there is a conflict between these Terms of Use and the Additional Terms, the Additional Terms will govern.

  1. THE VIVEPORT STORE. The Store is an online marketplace that HTC has created and operates which allows end users to access, purchase and use content, digital materials, applications, software, services, platforms, and websites (“Products”).

  2. AGE MINIMUM. You must be 14 years of age or older to use the Store. By using the Store, You certify that You are 14 years of age or older. If You are 14 years of age or older, but under the age of majority or age subject to parental consent according to local law, You should review these Terms of Use with Your parent or guardian to make sure that You and Your parent or guardian understand and agree to them.

  3. ESTABLISHING AN HTC ACCOUNT. To access and use certain features of the Store, You will be required to establish an HTC Account. When You register for an HTC Account, You must provide HTC with current, complete, and accurate information. You must keep Your HTC Account log-in credentials confidential and not authorize any third party to use it or Your HTC Account. You agree that HTC may attribute all use of Your HTC Account to You and that You are responsible for all activities that occur under Your HTC Account, including any purchases made using Your HTC Account. You must notify HTC immediately if You suspect unauthorized use of Your HTC Account credentials at the following e-mail address: security@htc.com.

  4. SYSTEM REQUIREMENTS. To access and use Products from the Store, You will need a computer that meets the system and compatibility requirements for the relevant Products, working internet access, a compatible virtual reality headset, and compatible software. These system requirements may change from time to time. Your ability to access and use Products from the Store, as well as the performance of these Products may be affected by these factors. These system requirements and the associated costs are Your responsibility.

  5. PURCHASING PRODUCTS OR PAID POINTS
    1. 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”).
    2. If You purchase any Products or Paid Points (defined below) through the Store You authorize HTC or its Third-Party Payment Provider to facilitate the purchase of those Products or Paid Points, to use the payment method, and, where applicable, to store the payment related information You provide. You may be billed for any purchased Products or Paid 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 subscriptions, as indicated in the Store at the time You purchase the subscription (see Section 5(f) 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.
    3. Any purchase from the Store will be subject to and in accordance with the terms of sale presented to You at the time of the purchase. Please read those terms of sale carefully before making any purchase. If those 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. You are solely responsible for all amounts payable associated with purchases made using Your HTC Account.
    4. Prices in the Store are subject to change without notice. HTC reserves the right to refuse or cancel orders at any time and in its sole discretion.
    5. HTC may allow You to access or use Products free of charge. Any terms and conditions that apply to purchased Products will apply to free Products (except payment-related terms and conditions). HTC may impose limitations on Your access and use of free Products. If You order Products that offer a free trial period identified at the time of purchase, You must cancel the Product by the end of the trial period to avoid incurring charges. If You do not cancel that Product, You authorize HTC or its Third-Party Payment Provider to charge You for that Product. Promotional and trial period offers are only redeemable and available during the periods specified.
    6. If You purchase a subscription-based Product, that subscription will be provided to You (and You agree to pay for that subscription) until You terminate it through the Store’s designated cancel subscription process or until the Product is no longer offered by HTC or the applicable licensor. If the price of Your subscription controlled by HTC increases, HTC will provide You with at least fifteen (15) days prior notice of the increase. If You do not agree to pay the increased price, You must immediately cancel Your subscription through the Store’s designated cancel subscription process. In some cases, HTC or the applicable licensor may cancel Your subscription unless You agree to re-subscribe at the new price.
    7. Except as expressly set forth in HTC’s (or its Third-Party Payment Provider’s) refund policy, all purchases on the Store are final and no returns, replacements, or refunds are permitted nor shall purchases be transferrable or redeemable in whole or in part. If certain Products become unavailable following a transaction but prior to download, Your sole remedy is a refund. If technical problems relating to the Store or any Products prevent or unreasonably delay the delivery of Your purchased Products, Your sole remedy is either replacement or refund of the price paid, as determined by HTC or its Third-Party Payment Provider.
    8. If Your use of Products are subject to any type of use or sales tax, duty or other governmental tax or fee (“Taxes”), then HTC or its Third-Party Payment Provider may charge You for those Taxes. Applicable Taxes may be presented at checkout. You are responsible for any Taxes due with respect to Your purchase or use of Products.
    9. Within any twenty-four (24) hour period, the total amount stored in Your Store account plus the total amount spent out of Your Store account, in the aggregate, may not exceed US$2,000 or its equivalent in Your local currency. HTC reserves the right to change, modify, or otherwise impose minimum and maximum balance requirements and other usage limits to Your Store account at any time, in its sole discretion.
    10. HTC or its Third-Party Payment Provider may use a third party to collect past due amounts. You must pay for all reasonable costs incurred to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. HTC may also suspend or cancel Your subscription or order and Your access to the Store or any Products if You fail to pay in full on time. If You cancel Your HTC Account, HTC or its Third-Party Payment Provider, reserves the right to collect any fees, surcharges, or costs incurred before cancellation.
    11. HTC strives to be as accurate as possible and to eliminate errors on the Store. However, HTC does not represent or warrant that any Product descriptions or pricing information are accurate, complete, reliable, current, or error-free. In the event of an error, HTC or its third party payment processor 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.

  6. PAID POINTS, REWARD POINTS, AND VIRTUAL ITEMS
    1. Through its Third-Party Payment Provider, HTC may offer You the ability to (i) purchase a limited license to use content currency that you may redeem in the Store or within a Product (“Paid Points”), (ii) earn content currency by using the Store or a Product or participating in certain games and activities (“Reward Points”), and (iii) use Paid Points and Reward Points to (A) purchase through the Store a limited license to use Products, or (B) purchase through a Product a limited license to use virtual in-game materials (“Virtual Items”). You may purchase Virtual Items only with Paid Points or, if applicable, Reward Points.
    2. If HTC offers the ability to purchase or earn such licenses to Paid Points, Reward Points, or Virtual Items, HTC or its Third-Party Payment Provider, as applicable, hereby grants You a non-exclusive, non-transferable, revocable, limited license to use the Paid Points, Reward Points, or Virtual Items for Your personal, non-commercial use exclusively in the Store and in Products, subject to the terms of this Agreement and Your compliance with these terms. The licenses granted hereunder to Paid Points, Reward Points, and Virtual Items will terminate upon termination of this Agreement and as otherwise provided herein.
    3. Paid Points and Reward Points may only be redeemed in the Store for Products, or redeemed in a Product for Virtual Items. Neither Paid Points or Reward Points nor Virtual Items are redeemable for money or monetary value from HTC or any other person or entity, except as otherwise required by applicable law. While You may “earn”, “buy” or “purchase” Paid Points, Reward Points, or Virtual Items, You do not legally “own” the Paid Points, Reward Points, or Virtual Items and the amounts of any Paid Points, Reward Points, or Virtual Items 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 Paid Points, Reward Points, or Virtual Items 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 Paid Points, Reward Points, or Virtual Items at any time, except as prohibited by applicable law.
    4. All purchases of Paid Points are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise provided in HTC or its Third-Party Payment Provider’s refund policy or required by applicable law. If You reside in the European Union, You acknowledge that once You purchase any Paid Points You will no longer have the right to cancel under the EU’s Consumer Rights Directive (as implemented by the law of the country where You are located) once the Paid Points are made available to You.
    5. HTC, in its sole discretion, may impose limits on the amount of Paid Points or Reward Points that may be purchased, earned, or redeemed. Except as otherwise prohibited by applicable law, HTC, in its sole discretion, has the absolute right to manage, modify, suspend, and/or eliminate Paid Points, Reward Points, and/or Virtual Items without notice or liability to You. HTC reserves the right to (i) modify or eliminate any or all of the Reward Points at any time at HTC’s sole discretion, and (ii) revise the pricing for Virtual Items.
    6. You are not allowed to transfer Paid Points, Reward Points, or Virtual Items, for example, by selling, gifting, or trading them nor are You allowed to sublicense, trade, sell or attempt to sell Paid Points, Reward Points, or Virtual Items for money, or exchange Paid Points, Reward Points, or Virtual Items for value of any kind outside of the Store or any Products. Any such transfer or attempted transfer is prohibited and void. Except as otherwise prohibited by applicable law, HTC and its licensors and retain all right, title, and interest in and to the Paid Points, Reward Points, and Virtual Items.
    7. YOU ACKNOWLEDGE THAT, EXCEPT AS SET FORTH IN HTC OR ITS THIRD-PARTY PAYMENT PROVIDER’S REFUND POLICY, NEITHER HTC NOR ITS LICENSORS ARE REQUIRED TO PROVIDE A REFUND OF PAID POINTS, REWARD POINTS, OR VIRTUAL ITEMS FOR ANY REASON. YOU FURTHER ACKNOWLEDGE THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PAID POINTS, REWARD POINTS, OR VIRTUAL ITEMS WHEN YOUR STORE ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, OR WHETHER YOU PAID FOR SUCH PAID POINTS OR VIRTUAL ITEMS.

  7. ACCESS TO PRODUCTS. Products are made available subject to HTC’s sole discretion. Selection or availability of any Products may be limited based on region. You may download and store purchased Products on up to five (5) personal computers or other compatible electronic devices at a time. HTC may from time to time place additional limits or other requirements on the number of devices and/or software applications You may use to access Products. HTC may record and store the unique device identifier numbers of Your personal computers or other electronic devices in order to enforce such limits. The availability of Products will vary between countries and not all Products may be available in Your country of residence.

  8. RATINGS. The Store may display age and content ratings for Products that are provided by developers of such Products. HTC does not guarantee that these ratings are accurate or that the Products do not contain objectionable content or otherwise comply with applicable law.

  9. BACKING UP PRODUCTS. Even if You use an HTC back-up service (if any is provided), (i) HTC does not guarantee that any Products, or other content and information You store or access will not be removed, damaged, corrupted, lost, or unavailable, and (ii) You are still responsible for backing up any Products or other content and information that You store or access using the Store. You also agree that any information, content, and software that You upload or download on a device may not be available to You on other devices.

  10. DEFECTIVE CONTENT. Once a Product is made available to You, You should check the Product as soon as reasonably possible to ensure that it downloads or streams correctly (as applicable) and performs as stated. Please contact the developer or the Third-Party Payment Provider concerning any defects or performance issues.

  11. THIRD PARTY PRODUCTS
    1. Many of the Products available through the Store are provided by third parties. HTC is not the licensor of these third-party Products. Instead, they are solely provided pursuant to an end user license agreement between You and the provider of such third-party Products. In the event of any conflict between that end user license agreement and the provisions of these Terms of Use, these Terms of Use will govern.
    2. The licensor of a Product may collect information about You when You use their Product. These third parties have their own privacy policies. We encourage You to review the applicable privacy policy prior to purchasing a third-party Product.
    3. If You are not provided an end user license agreement when You access, use, or purchase third-party Products, then the following license terms will apply to Your use of such third-party Products: (i) the third party providing the third-party Product is the licensor of such Product; and (ii) that third party grants You a limited, non-exclusive, non-transferable, revocable license to access and use the third-party Product only for Your personal and non-commercial purposes for the applicable rental, subscription, or license period, and, in other cases, for as long as the applicable third party has rights to provide You the third-party Product.
    4. The provider of the third-party Product, not HTC, is solely responsible for its third-party Product. HTC makes no representations or warranties with respect to third-party Products. HTC has no responsibility or liability with respect to Your use of the third-party Products, or any content or functionality contained in such third-party Products. Any claims You have with respect to third-party Products shall be against the provider of the third-party Product and not HTC.
    5. You agree that HTC will be a third-party beneficiary to any end user license agreement for third-party Products and is entitled to the rights and benefits thereunder and may enforce the provisions thereof as if HTC is a party thereto.

  12. HTC LICENSES. Conditioned upon Your full compliance with (and subject to) all the terms and conditions of these Terms of Use and any Additional Terms, HTC grants to You a limited, personal, non-transferable, non-exclusive, revocable license to access and use the Store and the Products controlled and operated by HTC for Your personal, non-commercial purposes for the applicable rental, subscription, or license period, and, in other cases, for as long as HTC has rights to provide You those Products.

  13. LICENSE LIMITATIONS. If fees are chargeable for any Product, then Your license to use that Product is granted to You subject to Your timely payment of any applicable fees owed for that Product. If You violate these Terms of Use, HTC may immediately terminate Your access to the Store, the Products, and/or Your associated HTC Account without refund to You. The licenses granted in Section 11 and 12 are conditioned upon Your compliance with the following limitations. You are not permitted to:
    1. work around any technical limitations in the Store or the Products or to use the Store or the Products 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 the Store or any Products;
    2. reverse engineer, decompile, decipher, disassemble or otherwise attempt to access source code relating to the Store or any Products, except and only to the extent that applicable law expressly permits, despite this limitation;
    3. sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense or transfer or assign any Products or Your rights to Products to any third party without authorization, including with regard to any downloads of Products that You may obtain through the Store (except with regard to Products where that use is expressly allowed pursuant to the applicable end user license agreement);
    4. modify or make any derivative works of any Products, in whole or in part;
    5. remove any proprietary notices or labels on the Store or any Products or any copy thereof;
    6. use the Store or any Products for any commercial purpose (except with regard to Products where that use is expressly allowed pursuant to the applicable end user license agreement);
    7. display (in part or in whole) the Store or any Products as part of any public performance or display even if no fee is charged (except with regard to Products where that use is expressly allowed pursuant to the applicable end user license agreement);
    8. use the Store or any Products 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 any applicable end user license agreement; or
    9. make use of the Store or any Products in any manner not permitted by these Terms of Use or any Additional Terms.

  14. SUPPORT AND UPDATES.HTC has no obligation to and may not provide support for the Store or any Products. You agree that HTC may automatically check Your computer to determine Your version of the Store and any Products You have acquired and may automatically send Your computer updates to the related software.

  15. PRIVACY. In order to access certain features of the Store or Products available within the Store You may be required to provide information about Yourself such as Your name, address, and billing details. HTC’s privacy policy explains how HTC treats Your personal data and protects Your privacy when using the Store. Any such information You provide to HTC must always be accurate, correct and up to date. HTC may provide Your personal information to third parties for the purposes of processing Your transactions and/or provisioning Products for You. If You use third-party Products in connection with the Store, do so with care. HTC is not responsible for how third-party Products collect, access, use, or disclose Your personal information. You should only use trusted third-party Products and check all third party privacy policies.

  16. ACCEPTABLE USE POLICY
    1. You agree that when accessing and using the Store You will not engage or attempt to engage in any improper use, including any use that violates the HTC Code of Conduct.
    2. If HTC suspects violations of these Terms of Use, HTC may institute legal action and cooperate with law enforcement authorities in bringing legal proceedings against violators. You agree to cooperate with HTC in investigating suspected violations by You or others, unless applicable law prohibits HTC from requiring You to cooperate. You authorize HTC to install, implement, manage, and operate one or more software, monitoring, or other solutions designed to assist in identifying or tracking activities that HTC considers to be illegal or violations of these Terms of Use.

  17. USER CONTENT
    1. The Store may offer interactive features that allow You to submit materials on areas of the Store accessible and viewable by other users and the public (e.g. ratings/reviews of Products). You agree that any use by You of such features, including any materials submitted by You, shall be Your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You represent and warrant that You have obtained all necessary rights and licenses to the materials You submit.
    2. You hereby grant to HTC and its affiliates a perpetual, non-exclusive, worldwide, royalty-free license to use such materials in connection with the operation and/or promotion of the Store, in relation to Products, or in connection with any other product or service offered now or in the future by HTC without any compensation or obligation to You. HTC reserves the right to not post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability.
    3. HTC has no responsibility or liability for such materials, and no obligation to screen, edit or monitor such materials.

  18. IP OWNERSHIP. Except as otherwise stated in these Terms of Use,HTC, its affiliates and its licensors and suppliers own the title, copyright, and other intellectual property rights in the Store and the Products available within (and all rights embodied therein) and reserve all rights not expressly granted to You in these Terms of Use. HTC, Viveport, the associated logos, and other HTC product and service names referenced in the Store are the trademarks of HTC Corporation and its affiliates. Any other company names, product names, service names, and logos referenced in connection with the Store and Products may be the trademarks of their respective owners and may not be used without their permission.


  19. FEEDBACK. Separate from any user content You may contribute pursuant to Section 17, You may submit oral or written comments, suggestions, ideas, plans, notes, and drawings, or other information about the Store or Products (“Feedback”). HTC is free to use, disclose, reproduce, license, or otherwise distribute that Feedback, without any obligations to You.

  20. TERMINATION. These Terms of Use will automatically terminate upon Your breach of any of the terms and conditions of these Terms of Use. You may terminate these Terms of Use at any time by cancelling Your HTC Account. The termination of these Terms of Use will not entitle You to any refund, including any subscription related fees. If these Terms of Use are terminated for any reason, You must immediately stop all further use access or use of the Store and the following Sections of these Terms of Use will survive: Sections 9, 11, and 13 through 33. HTC reserves the right to change, remove, delete, restrict or block access to, or stop providing all or any part of the Store or any Products at any time without notice.

  21. HEALTH AND SAFETY. THERE ARE IMPORTANT HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS THAT YOU MUST READ BEFORE USING THE HTC VIVE, WHICH ARE AVAILABLE AT HTCVIVE.COM. BY USING THE HTC VIVE, THE STORE, AND ANY PRODUCTS, YOU REPRESENT AND WARRANT 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 PRODUCTS.

  22. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE STORE, ALL PRODUCTS, AND ALL PAID POINTS, REWARD POINTS, AND VIRTUAL ITEMS 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 STORE, ANY PRODUCTS AVAILABLE WITHIN, OR ANY PAID POINTS, REWARD POINTS, OR VIRTUAL ITEMS: (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; OR (IV) OR THAT ANY DEFECTS OR ERRORS THEREIN WILL BE CORRECTED. ALL PRODUCTS, PAID POINTS, REWARD POINTS, AND OTHER MATERIAL YOU DOWNLOAD OR ACCESS AND USE THROUGH THE STORE ARE ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM. INSTALLATION OF PRODUCTS MAY AFFECT THIRD-PARTY HARDWARE, SOFTWARE, APPLICATIONS, DEVICES, OR SERVICES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS THAT THESE TERMS OF USE CANNOT CHANGE. IN PARTICULAR, TO THE EXTENT LOCAL LEGISLATION IMPLIES STATUTORY TERMS WHICH CANNOT BE EXCLUDED, THOSE TERMS ARE DEEMED INCORPORATED INTO THESE TERMS OF USE 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.

  23. DISCLAIMER OF CERTAIN DAMAGES. IN NO EVENT WILL HTC OR ANY SUPPLIER OR LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL; SPECIAL; INCIDENTAL; DIRECT; 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 THESE TERMS OF USE OR THE STORE OR ANY PRODUCT(S) AND/OR SERVICE(S) OR PAID POINTS AND REWARD POINTS, 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 23 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 23 MAY NOT APPLY TO YOU.

  24. 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 24, HTC’S AND ITS SUPPLIERS’ AND LICENSORS’ MAXIMUM, AGGREGATE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER THESE TERMS OF USE 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 THESE TERMS OF USE, THE STORE, ANY PRODUCTS AVAILABLE WITHIN, OR ANY PAID POINTS OR REWARD POINTS WILL BE TO RECOVER THE GREATER OF (I) THE ACTUAL DAMAGES YOU INCUR BASED UPON REASONABLE RELIANCE ON THE STORE, ANY PRODUCTS AVAILABLE WITHIN, OR ANY PAID POINTS OR REWARD POINTS UP TO FIVE DOLLARS (U.S. $5.00) OR (II) THE AMOUNT YOU PAID TO USE THE AFFECTED PRODUCTS, PAID POINTS, OR REWARD POINTS IN THE PRIOR YEAR.

    THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THESE TERMS OF USE, THE STORE, PRODUCTS, PAID POINTS, REWARD POINTS, 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 24 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 24 MAY NOT APPLY TO YOU.

    EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT, YOU AND HTC AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR HTC WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND HTC WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).

  25. INDEMNIFICATION. You will defend, indemnify, and hold harmless HTC, its directors, officers, employees, agents, partners, suppliers, and licensors and will keep them indemnified from any third party claim or demand, including reasonable attorneys’ fees, relating to or arising from (i) Your unauthorized use of the Store and/or any Products, Paid Points, or Reward Points; (ii) any violation by You of these Terms of Use; (iii) Your violation of any another party’s rights or applicable law; or (iv) any user content or Feedback You provide.

  26. RESTRICTED USE. The Store, the Products available within, the Paid Points, and Reward Points were not designed for systems that do not require fail-safe performance. You may not use the Store, any Products, Paid Points, or Reward Points in any device or system in which a malfunction of the Store, any Product, Paid Points, or Reward Points 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.

  27. GOVERNING LAW AND JURISDICTION FOR RESOLVING DISPUTES. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Use.

    1. North and South America. If You reside in North or South America, You are contracting with HTC America, Inc. and the following terms in this Section 27(a) shall apply:

    2. AGREEMENT TO ARBITRATE DISPUTES

      IF YOU reside IN NORTH OR SOUTH AMERICA PLEASE READ THIS SECTION 27(A) CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH HTC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM HTC.

      Binding Arbitration. If You use reside in North or South America, then, except for disputes in which either party seeks to bring an individual action in small claims court, You and HTC agree (i) to waive Your and HTC’s respective rights to have any and all disputes or claims arising from or related to these Terms of Use or the use or performance of the Store, any Product(s) available within, or any Paid Points, or Reward Points (collectively, “Disputes”) resolved in a court, and (ii) to waive Your and HTC’s respective rights to a jury trial. Instead, You and HTC agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).

      No Class Arbitrations, Class Actions or Representative Actions. You and HTC agree that any Dispute arising out of or related to these Terms of Use, is personal to You and HTC and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding. You and HTC agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, You and HTC agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

      Notice; Informal Dispute Resolution. You and HTC agree that each party will notify the other party in writing of any arbitrable or small claims Dispute not less than thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to HTC shall be sent to HTC Arbitration Program Administrator, 308 Occidental Avenue South, Suite 300, Seattle, WA 98104. Your notice must include (a) Your name, postal address, telephone number, the email address You use or used for Your HTC Account or, if different, an email address at which You can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that You are seeking. Our notice to You will be sent electronically to the email address You use or used for Your HTC Account, where available, and will include (a) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. If You and HTC cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either You or HTC may, as appropriate and in accordance with these Terms of Use, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in small claims court.

      Process. You and HTC agree that the arbitration shall be according to the American Arbitration Association Commercial Arbitration Rules applicable to consumer disputes (the “AAA Rules”), except insofar as those rules would be inconsistent with any part of these Terms of Use, including without limitation the agreement to arbitrate. For claims of $5,000 or less, You may decide whether You would prefer to have the arbitration decided based only on documents submitted to the arbitrator, or by a hearing in person or by phone. The arbitration shall be held in King County, Washington and the state and federal courts located in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the U.S. county of Your residence if the Dispute meets the requirements to be heard in small claims court.

      Authority of Arbitrator. As limited by the Federal Arbitration Act, these Terms of Use and the applicable AAA rules, the arbitrator will have the authority to grant any remedy that would otherwise be available in court, provided that the arbitrator’s award may not exceed, in form or amount, the relief that a United States District Court could order under these Terms of Use; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Use. Notwithstanding the AAA Rules, any decisions concerning arbitrability of a particular dispute, including but not limited to whether a class arbitration is permitted by these Terms of Use, shall be resolved by a proper court in King County, Washington, rather than an arbitrator. Any dispute concerning the enforceability of this agreement to arbitrate, or any part thereof, shall also be resolved by a proper court in King County, Washington, rather than an arbitrator.

      Rules of AAA. The rules of AAA and additional information about AAA are available on the AAA website (https://www.adr.org/aaa/faces/aoe/gc/consumer). By not opting out of this agreement to arbitrate as specified below, You either (a) acknowledge and agree that You have read and understand the AAA Rules, or (b) waive Your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.

      Applicability of Agreement to Arbitrate. IF THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH ABOVE IS DEEMED TO BE UNENFORCEABLE, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.

      RIGHT TO OPT OUT: This agreement to arbitrate disputes will apply unless You notify HTC in writing postmarked no later than 30 calendar days of first use the Store that You reject the agreement to arbitrate. You must include in Your notice of opt-out (a) Your name and address; (b) the date on which You first used the Store. You must send Your written notice to HTC Arbitration Program Administrator, 308 Occidental Avenue South, Suite 300, Seattle, WA 98104. No other form of notice will be effective to opt out of this agreement to arbitrate. If You opt out of the agreement to arbitrate, the other terms in these Terms of Use will still apply to You.

      GENERAL PROVISIONS

      1. Waiver of Jury Trial: IF A DISPUTE BETWEEN YOU AND HTC PROCEEDS IN COURT RATHER THAN OR IN ADDITION TO IN ARBITRATION, YOU AND HTC UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE.
      2. Governing Law: The Federal Arbitration Act (the “FAA”) applies to the agreement to arbitrate. Except as preempted by FAA, the law of the State of Washington, without reference to its choice of laws principles, shall govern these Terms of Use. Notwithstanding the foregoing, the laws of Your state of residence in the U.S.A., (or if You live outside of the U.S.A. but within North or South America, the law of the country where You live), will apply to any tort claims and/or any claims under any consumer protection statutes.
      3. Severability: Except as specifically provided above, if any provision of these Terms of Use are held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the enforceability of the remainder of these Terms of Use.

    3. Europe, Middle East, and Africa. If You reside 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 these Terms of Use and apply to claims for breach of them, 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 these Terms of Use. 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 these Terms of Use exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.

    4. Australia, New Zealand, and Asia (except for the Middle East). If You reside 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 these Terms of Use and apply to claims for breach of them, 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 these Terms of Use. 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 these Terms of Use exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.

  28. COPYRIGHT NOTICE AND TAKEDOWN PROCEDURES. You agree to respect the intellectual property rights of HTC and third parties. If You believe that material available through the Store infringes the copyright of any third party, please notify HTC's copyright agent by using the notice procedure described within the Copyright link on the Store website. After receiving notice, HTC may remove or disable access to any potentially infringing material. HTC has the right to terminate any account or right of access to the Store for infringement by the account holder, or person accessing the Store, of HTC's or others' rights.

  29. LEGAL EFFECT. These Terms of Use do 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 these Terms of Use.



  30. COMPLIANCE WITH LAW; EXPORT REGULATIONS. You will comply with all national and international laws, rules and regulations that apply to the Store and any Products and Your use of the Store and any Products, (to which the they are subject), as well as end-user, end-use, and destination restrictions issued by U.S. or other governments.

  31. GENERAL. The section titles in these Terms of Use 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 these Terms of Use 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 these Terms of Use 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 these Terms of Use. These Terms of Use will be binding upon all of HTC’s successors and assigns.



  32. ENTIRE AGREEMENT.These Terms of Use, and any Additional Terms, comprise the entire agreement for the Store.

  33. CONTACT INFORMATION. If You have any questions about these Terms of Use please direct all notices and correspondence to:

    If to HTC Corporation

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

    If to HTC America, Inc.

    Attn: VP and Deputy General Counsel
    308 Occidental Avenue South
    Suite 300
    Seattle, Washington 98104
    United States
    With a copy to: HTC Corporation at the address above

    If to HTC Europe Co., Ltd.

    Salamanca, Wellington Street
    Slough, Berkshire SL1 1YP,
    United Kingdom
    With a copy to: HTC Corporation at the address above.