ELECTRONIC DISTRIBUTION AGREEMENT
Effective Date: ________________
This Electronic Distribution Agreement (this “Agreement”) is a binding legal agreement between You, on
the one hand, and Meta Platforms Technologies, LLC, located at 1 Meta Way, Menlo Park, CA 94025,
and Meta Platforms Technologies Ireland Ltd., located at Merrion Road, Dublin 4, D04 X2K5, Ireland
(collectively, “MPT”) on the other hand. This Agreement governs one or more Product(s) (defined below)
submitted by You for distribution by MPT and/or its Affiliates. References to “You,” “Your,” or
“Developer” refer to the individual, company, organization, or other entity and its Affiliate(s) (defined
below) that is submitting a Product for distribution pursuant to this Agreement, and shall be effective as
of the date You agree to this Agreement (the “Effective Date”).
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT
AFFECT YOU, YOUR PRODUCT(S), AND MPT’S AND ITS AFFILIATES’ DISTRIBUTION
ACTIVITIES. BY CLICKING ON THE “I AGREE” BUTTON, YOU REPRESENT THAT:
(A) YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT;
(B) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY,
ORGANIZATION, OR OTHER ENTITY, YOU HAVE AUTHORITY TO BIND SUCH COMPANY,
ORGANIZATION, OR OTHER ENTITY TO THESE TERMS, IRRESPECTIVE OF THE USE OF
ANY ALIASES FOR THE COMPANY’S “ORG” DESIGNATION;
(C) IF THE DEVELOPER SEEKING TO DISTRIBUTE PRODUCT(S) PURSUANT TO THIS
AGREEMENT IS UNDER THE AGE OF MAJORITY IN THE LAWS OF THE DEVELOPER’S
JURISDICTION, (A) YOU ARE THE PARENT OR LEGAL GUARDIAN OF THE MINOR
DEVELOPER; (B) YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT ON
BEHALF OF THE MINOR DEVELOPER; AND (C) YOU UNDERSTAND AND AGREE
REFERENCES TO “YOU,” “YOUR,” AND “DEVELOPER,” IN THIS AGREEMENT APPLY TO
YOU AND THE MINOR DEVELOPER.
IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT OR DO NOT HAVE
THE AUTHORITY TO BIND THE COMPANY, ORGANIZATION, OR OTHERENTITY, THEN DO
NOT CLICK ON THE “I AGREE” BUTTON AND DO NOT SUBMIT ANY PRODUCT FOR
DISTRIBUTION.
1. CERTAIN DEFINITIONS.
The following terms shall have the following meanings when used in the Agreement:
1.1
“Affiliate” of a party means an entity which, directly or indirectly, owns or controls, is owned or is
controlled by, or is under common ownership or control with that party. As used herein, “control” means
the power to direct the management or affairs of an entity, and “ownership” means the beneficial
ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.
1.2 “
Content Information
”
means any content footage, channel names, video cover images, titles, descriptions, deep links, metadata,
previews, trailers, and any other content or content information that Developer, directly or indirectly,
provides, transmits, or makes available to MPT or its Affiliates pursuant to this Agreement.
1.3 “
Developer Brand Features
”
means all trademarks, trade names, trade dress, service marks, logos, designs, characters, artwork, domain
names, and other distinctive brand features used to identify origin that are provided by or on behalf of
Developer in connection with this Agreement or used by Developer in connection with a Product.
1.4 “
Developer Marketing Materials
”
means packaging, artwork, manuals, instructional materials, documentation, advertising copy, Content
Information, social media posts, blog posts, banner ads, product descriptions, promotional emails, trailers,
and any other sales or marketing materials relating to a Product provided or made available by Developer
in connection with this Agreement, including any Developer Brand Features incorporated therein.
1.5 “
Developer Revenue
”
means any App Revenue (as defined in Section 5.1(a) below) and Subscription Revenue (as defined in
Section 5.1(b) below).
1.6 “
Device
”
means any virtual reality, mixed reality, augmented reality, or spatial computing device that is approved
by or branded by MPT or its Affiliates, including the Meta Quest line of products, and any future and
successor models or versions of any of the foregoing, whether offered under the same or a different name.
1.7 “
Laws
”
means any and all existing and future U.S. domestic (federal, state, or local) and foreign laws, statutes,
ordinances, rules, regulations, and orders of any governmental entity, commission, or agency.
1.8 “
Meta Brand Features
”
means all trademarks, trade names, trade dress, service marks, logos, designs, characters, artwork, domain
names, and other distinctive brand features used to identify origin that are provided by MPT or its
Affiliates in connection with this Agreement or used by MPT or its Affiliates in connection with the
Devices or the Platform.
1.9 “
Marketing Materials
”
means packaging, artwork, manuals, instructional materials, documentation, advertising copy, artwork,
social media posts, blog posts, banner ads, product description pages, promotional emails, trailers, and
any other sales or marketing materials relating to a Product
created
by or on behalf of MPT or its
Affiliates in connection with this Agreement, which may include clips or stills from the Product, Meta
Brand Features, Developer Brand Features or Developer Marketing Materials.
1.10. “
Net Revenues
”
means all gross revenues received by MPT or its Affiliates from the sale of licenses to the Product(s)
under Section 2.1(a) (License) and in-Product purchases, less (a) applicable taxes, (b) sales processing
costs or fees, and (c) returns, rebates, charge-backs, fraudulent transaction amounts, and refunds.
“Applicable taxes” do not include withholding taxes, which are addressed in Section 5.4(b) (Withholding
Tax).
1.11 “
Platform
”
means the virtual, mixed, or augmented reality or spatial computing platform, including the end user
experiences, user interfaces, Store, social features, Platform Services, whether now known or hereinafter
developed, and any updates and successors thereto.
1.12 “
Platform Services
”
means any services and applications associated with the Platform, including, authentication, identity,
matchmaking, leaderboards, billing and financial services, anti-cheat, and auto-updating, which may be
changed or discontinued from time to time.
1.13 “
Product
”
means the software product(s), including, all applications, updates, upgrades, patches, expansion packs,
add-ons, additional levels, user generated content, and in-Product purchases, provided by Developer for
distribution under this Agreement.
1.14 “
Store
”
means the storefront(s) provided by MPT or its Affiliates, or their respective licensees for the distribution
of applications and content for use on the Platform, as may be available in headset, via mobile
applications, web sites, and other distribution channels.
1.15 “
Term
”
has the meaning as defined in Section 6.1 (Term).
1.16 “
Terms and Policies
”
means MPT’s current terms and policies generally applicable to developers, Products, or content and
services made available via such Products, including those terms and policies set forth in:
●
the Developer Policy Center (
https://developers.meta.com/horizon/policy/policy-overview
),
●
the Supplemental Meta Platforms Technologies Terms of Service
(
https://www.meta.com/legal/spplemental-terms-of-service/
),
●
the Meta Terms of Service (
https://www.facebook.com/legal/terms/
),
●
the Developer Data Use Policy (
https://developers.meta.com/horizon/policy/data-use/
),
●
the Supplemental Meta Platforms Technologies Data Policy
(
https://www.meta.com/legal/privacy-policy/
), and
●
the Meta Privacy Policy (
https://www.facebook.com/privacy/policy/
),
●
along with all terms and policies referred in each of the foregoing whether at the current or future
URLs, along with all updates thereto made from time to time.
1.17 “
Territory
” means worldwide.
2. GRANT OF RIGHTS.
2.1
Rights and Licenses
.
Developer hereby grants MPT a fully-paid up, royalty free, non-exclusive license in the Territory, and
authorizes MPT and its Affiliates, during the Term and thereafter to the extent set forth in Section 6.4
(Effect of Termination), to:
●
a. sell or otherwise distribute licenses to Product(s);
●
b. use, reproduce, distribute, publicly perform, publicly display, host, stream, and store:
●
(i) Product(s) to users who have purchased or acquired licenses pursuant to Section 2.1(a)
(License) above;
●
(ii) Developer Brand Features in connection with the rights and licenses set forth herein
in all media now known or hereafter devised;
●
(iii) Developer Marketing Materials, and to prepare Marketing Materials (incorporating
Developer Brand Features, Developer Marketing Materials, the Product(s), and/or the
Content Information, in whole or in part) relating to the Product(s), whether used alone or
with other content, in connection with marketing and promoting the Product(s), Platform,
or Device in all media now known or hereinafter devised, including retail, social media
and in paid or sponsored posts;
●
(iv) Product(s) and Developer Marketing Materials for internal business purposes (e.g.,
internal meetings, announcements, and presentations), or any other purposes approved by
Developer (email sufficing), in any media now known or hereinafter devised;
●
(v) Product(s) for the purposes of demonstrating a Product including in a public setting
(e.g., trade shows, retail stores), in MPT’s sales and marketing materials, and in MPT and
its Affiliates’ owned and operated blogs and social media channels, and to distribute a
Product to media outlets for the purposes of preview or review of such Product (free of
charge);
●
(vi) Recordings or still images created by end users as derivative works of a Product,
which end users may share (unless disabled by Developer); and
●
(vii) Product(s), to enable synchronous viewing by end users (“Co-Watching”), as
applicable.
●
c. use and store end user recordings or still images for integrity and investigation purposes (e.g.,
misconduct or abuse within a Product) for internal purposes. MPT reserves the right but not the
obligation to review and investigate Product(s) for such integrity purposes and use such
recordings in connection with such investigation or any related enforcement actions.
2.2
Sublicense Rights
.
MPT and its Affiliates may use contractors for the purposes of exercising their rights and licenses set
forth above in Section 2.1 (Rights and Licenses). Notwithstanding the foregoing or any other provision in
this Agreement, all revenue collected by any contractors, if any, pursuant to Section 2.1 will be deemed to
be collected by MPT or an MPT Affiliate, as applicable, for purposes of Section 5.1 (Developer
Revenue).
2.3.
Testing and Evaluation
.
Developer agrees that MPT and its Affiliates may grant their respective employees, contractors, partners,
and vendors the right to use, perform, and display the Product(s) for testing and evaluation purposes,
which shall be provided free of charge. If a Product supports the use of a user account, upon MPT’s
request, Developer will provide MPT with a reasonable number of user accounts for use by MPT in
connection with exercising its rights under this Agreement.
2.4
Appointment
.
Developer hereby appoints MPT as Developer’s authorized agent, with the powers solely necessary for
MPT’s exercise of its rights and performance of its obligations under this Agreement, and MPT hereby
accepts such appointment.
3. PLATFORM AND END USER LICENSING.
3.1
MPT Terms of Service
.
The rights provisions governing use of the Platform and Platform Services are set forth in the
Supplemental Meta Platforms Technologies Terms of Service, including the Terms and Policies
referenced therein (collectively, the “TOS”) which MPT or its Affiliates may update from time to time.
3.2
Developer Terms of Service
.
If Developer requires end users to agree to terms governing a Product, those terms must be set forth in an
agreement between Developer and end users (“Developer Terms of Service”). If Developer does not
provide end users with Developer Terms of Service, then (without limiting any remedies of MPT or its
Affiliates) the license terms applicable to third-party content and services in the TOS (“MPT-Provided
Terms”) will apply to end users of Developer’s Product(s) and such license terms will constitute the end
user license hereunder. MPT or its Affiliates may update the MPT-Provided Terms from time to time. In
all instances, the Product license rights granted to each end user, including those licensed under the
MPT-Provided Terms, will be deemed to be granted by Developer. All Developer Terms of Service must
include, at a minimum, substantively the same terms as the MPT Provided Terms.
4. MARKETING, CONTENT INFORMATION, RATINGS &
SUPPORT.
4.1
Marketing Materials
.
Developer agrees to create, or have created, Developer Marketing Materials and deliver Developer
Marketing Materials to MPT or its Affiliates promptly upon written request from MPT, including such
assets as are reasonably necessary for MPT or its Affiliates to display and market a Product.
4.2
Content Information
.
If and to the extent that MPT or its Affiliates request Content Information, Developer will deliver to MPT
or its Affiliate a feed of such Content Information in accordance with generally applicable specifications
provided by MPT or its Affiliates, which may be updated or amended from time to time by written notice
to Developer (email to suffice) or by posting the same to MPT’s developer portal or site.
4.3
Ratings
.
Developer will be responsible for, and will fulfill, any and all legal requirements, in each applicable
jurisdiction, with respect to ratings for each Product. Without limiting the foregoing, Developer will
provide true and accurate information in connection with obtaining an age rating using the IARC
(International Age Ratings Coalition) system as made available by MPT or otherwise obtain, disclose, and
publish applicable ratings for each Product.
4.4
Support
.
MPT or its Affiliates will be responsible for all billing questions from end users to the extent Product
billing is processed by MPT or its Affiliates, and for support with respect to the Platform and Platform
Services. Developer will maintain and support the Product(s), including end user customer support, bug
fixes, live operations support, and general technical support (collectively, “Product Support”), and
Developer will perform all such Product Support in a professional, workmanlike, and timely manner.
Developer will provide (to end users as well as to MPT and its Affiliates) at least the same level of
support that Developer provides to the end users of, and platform providers for, Developer’s other
products, if applicable. Developer will provide all necessary assistance and consultation as reasonably
requested by MPT or its Affiliates.
4.5
Product Revenue Models
.
Developer may only implement in-Product purchases (made from, within or through a Product),
in-Product advertising, or any other revenue model within a Product using the means that are (a) approved
in a writing by MPT or its Affiliate to Developer or (b) approved in publicly available Terms and Policies.
Developer will provide adequate notices to each end user about each charge for an in- Product purchase ,
obtain express, informed consent from each end user before charging such end user for any in-Product
purchase, and will otherwise comply with all applicable Laws, including rules, regulations, and agency
guidelines regarding in-Product purchases and in-Product advertising. MPT or its Affiliates may provide
refunds to end users for charges related to In-Product purchases as described in Section 5.1 (Developer
Revenue) and Section 5.2 (End User Refunds) below.
5. FINANCIAL TERMS AND ACCOUNTING.
5.1
Developer Revenue
.
MPT shall remit a percentage of the Net Revenues to the Developer as follows:
●
a. App Revenue. Except as set forth in Secction 5.1(b) (Subscriptions), MPT shall (i) retain thirty
percent (30%) of the Net Revenues as consideration for the services rendered by MPT or its
Affiliates (including through their contractors) under this Agreement (the “MPT Services”); and
(ii) remit to Developer the remaining seventy percent (70%) of the Net Revenues (“App
Revenue”).
●
b. Subscriptions. The following terms apply to the sale of licenses to a Product by way of a
recurring payment model (each a “Subscription”):
●
(i) the Net Revenues generated from Subscriptions (“Subscription Revenue”) is
calculated as follows:
●
(A) during the first three (3) consecutive months of each Subscription Term
(defined in **Section 5.1(b)(ii) (Subscription Term) below), MPT shall (1) retain
thirty percent (30%) of the Net Revenues as consideration for the MPT Services
and (2) remit to Developer the remaining seventy percent (70%) of such Net
Revenues;
●
(B) during and after the fourth consecutive month of each Subscription Term
(defined below), MPT shall (1) retain fifteen percent (15%) of the Net Revenues
as consideration for the MPT Services; and (2) remit to Developer the remaining
eighty-five percent (85%) of such Net Revenues; and
●
(C) for Subscription Terms (defined below) longer than three (3) months, Net
Revenues in respect of such Subscriptions shall be paid (and refunds shall be
processed) on a blended basis to give effect to the foregoing.
●
(ii) Each “Subscription Term” shall commence upon (A) the date of sale of the license or
(B) in the event of a free trial period, the date the paid Subscription begins, and, in each
case, shall continue for the corresponding Subscription period offered to the end user,
unless earlier canceled in accordance with the applicable Subscription terms.
Modifications to a Subscription tier (e.g., upgrades, add-ons, downgrades) shall not affect
the Subscription Term, and such Subscription Term shall continue for such modified
Subscription until it otherwise expires or is canceled.
●
(iii) If a Subscription Term expires or is canceled, and the same user purchases a new
Subscription, the Subscription Term for the new Subscription commences on the
purchase date of the new Subscription. Notwithstanding the foregoing if a new
Subscription purchase is made within thirty (30) days of the expiration or cancellation of
the prior Subscription, MPT will treat such new Subscription purchase as a continuation
of the prior Subscription.
●
(iv) For more information on Subscriptions see
Subscriptions
5.2
End User Refunds
.
MPT shall have authority to issue refunds to end users in accordance with MPT’s standard procedures.
5.3
Payment
.
MPT shall remit Developer Revenue to Developer on a monthly basis within thirty (30) days after the end
of each month (each, a “Payment”), together with a report showing the calculation of Developer Revenue.
Developer shall be solely responsible for any and all financial institution fees relating to each Payment.
MPT will not be required to remit Developer Revenue for any month in which Developer Revenue is less
than one hundred U.S. Dollars (USD $100) (or the equivalent thereof in other currencies, based on MPT’s
standard currency exchange process and timing) (“Threshold”), provided that, any such amounts that do
not meet the Threshold (each a “Withheld Amount”) will be carried forward month-over-month until the
sum of such Withheld Amounts exceeds the Threshold, at which time MPT will make a Payment for such
Withheld Amounts to Developer within thirty (30) days after the end of the month in which the Threshold
is met. MPT may convert the amounts it receives into other currencies, in accordance with MPT’s
standard currency exchange process and timing. MPT may pay Developer in the currency it receives from
purchasers or in the currency into which MPT has exchanged such amounts.
5.4
Taxes
.
●
a. Transaction Taxes. In the event that the sale or delivery of any Product to any end user is
subject to any sales, use, goods and services, value added, or other similar tax (other than
Developer’s income taxes) under applicable law or regulation (collectively, “Transaction Taxes”),
MPT will be responsible for the collection and remittance of such Transaction Taxes to relevant
tax or other competent authorities. Developer shall indemnify and hold MPT and its Affiliates
harmless against any and all claims by any tax or other competent authority for any underpayment
of any Transaction Taxes, and any penalties or interest thereon, including as may result from
mischaracterization of a Product submitted by Developer for distribution under this Agreement.
●
b. Withholding Taxes. In the event that any remittance or Payment made by MPT to Developer is
subject to any withholding or similar tax (“Withholding Tax”), the full amount of such
Withholding Tax shall be solely for Developer’s account and will not reduce the amount to which
MPT is entitled. If MPT reasonably believes that Withholding Tax is due, MPT will deduct the
full amount of such Withholding Tax from the amount otherwise owed to Developer, and will pay
the full amount withheld over to the relevant tax or other competent authority. MPT will apply a
reduced rate of Withholding Tax, if any, provided for in any applicable income tax treaty only if
Developer furnishes MPT with the documentation required under such income tax treaty, or
documentation otherwise satisfactory to MPT, sufficient to establish Developer’s entitlement to
the benefit of such reduced rate of Withholding Tax. Upon Developer’s timely request to MPT in
writing, using means reasonably designated by MPT, MPT will use commercially practical efforts
to report to Developer the amount of MPT’s payment of Withholding Tax to the relevant tax or
other competent authority on Developer’s behalf. Developer will indemnify and hold harmless
MPT and its Affiliates against any and all claims by any tax or other competent authority for any
underpayment of any Withholding Tax, and any penalties or interest thereon including,
underpayment attributable to any erroneous claim or representation by Developer as to
Developer’s entitlement to the benefit of a reduced rate of, or Developer’s disqualification from,
Withholding Tax.
5.5
Use of Affiliates
.
MPT may exercise its rights and fulfill its obligations as set forth in this Section 5 (Financial Terms and
Accounting) through an Affiliate, in which case references to MPT in this Section 5 will be deemed
references to such Affiliate.
6. TERM AND TERMINATION.
6.1
Term
.
The term of this Agreement commences on the Effective Date and continues until it is terminated in
accordance with this Section 6 (the “Term”).
6.2
Termination for Breach
.
Either party may immediately terminate this Agreement in the event of a material breach by the other
party that is not cured to the satisfaction of the non-breaching party within ten (10) days after receipt by
the breaching party of written notice describing the breach.
6.3
Termination for Convenience
.
Without limiting its other rights or remedies under this Agreement, either party may terminate this
Agreement for convenience at any time upon thirty (30) days’ prior written notice to the other party.
6.4
Effect of Termination
.
Upon termination of this Agreement for any reason, and subject to the terms of Section 6.5 (Survival), (a)
all rights and licenses granted hereunder shall cease;
provided, that,
(i) the licenses granted to MPT and
its Affiliates to distribute the Product(s) shall survive such termination for the purpose of supporting end
users who licensed the Product(s) during the Term; and (ii) each and every license granted to an end user
during the Term, and MPT and its Affiliates’ rights under Section 2.1(b)(i), Section 2.1(b)(vi), and
Section 2.1(d), will be perpetual and irrevocable; (b) Developer shall immediately cease all use of the
Meta Brand Features, if any; (c) Developer will honor (and continue to honor) all applicable Developer
Terms of Service, in accordance with the terms applicable to such Developer Terms of Services; and (d)
MPT and its Affiliates may retain and use copies of the Product(s) and Developer’s Confidential
Information, in each case solely as necessary to support the Product(s) and the Platform, and to exercise
their rights in Section 2.1(b)(i) and Section 2.1(b)(vi)-(vii). Notwithstanding any termination of this
Agreement, MPT shall not be required to recall, remove, obscure, and/or take any other action in
connection with any Marketing Materials related to the Product(s), including those Marketing Materials
that include Developer Brand Features or Developer Marketing Materials, for which MPT commenced
use of prior to the effective date of termination.
6.5.
Survival
.
The following sections of this Agreement, along with the Electronic Non-Disclosure Agreement, will
survive any termination of this Agreement: Section 1 (Certain Definitions), Section 2.1(b)(i), Section
2.1(b)(vi), Section 2.1(d), Section 2.2 (Sublicense Rights), Section 3.2 (Developer Terms of Service),
Section 4.4 (Support), Section 4.5 (Product Revenue Models), Section 5 (Financial Terms and
Accounting) with respect to any unpaid amounts that accrued during the Term and indemnification
obligations, Section 6.4 (Effect of Termination), Section 6.5 (Survival), Section 8 (Policies & Privacy),
Section 9 (Confidential Information) Section 10 (Representations and Warranties), Section 11
(Indemnification), Section 12 (Limitations of Liability), Section 13 (Proprietary Rights), and Section 14
(General Provisions).
7. PRODUCT REQUIREMENTS.
7.1
Technical Requirements
.
Developer will ensure that each Product complies with all technical requirements, virtual reality checks
(VRCs), and specifications, including with respect to health and safety (“Technical Requirements”).
Technical Requirements are made available via MPT’s Developer center (
developers.meta.com/horizon/
).
MPT may update the Technical Requirements from time to time, with such updates posted in MPT’s
Developer center.
7.2
Languages
.
Developer will provide to MPT or its Affiliates (as requested) any and all localized versions of the
Products, including foreign language integrations.
8. POLICIES AND PERFORMANCE DATA.
8.1
Terms and Policies
.
MPT may establish and revise any of its Terms and Policies from time to time, including through its
Developer center at https://developers.meta.com/horizon/policy/policy-overview. Developer will comply,
and will ensure that each Product complies, with the Terms and Policies (which are hereby made part of
this Agreement) at all times during which a Product is distributed pursuant to this Agreement or in use by
end users, including after termination of this Agreement as set forth in Section 6.4 (Effect of
Termination). MPT will provide Developer with no less than thirty (30) days’ prior notice of any new or
revised Terms and Policies (the “Notice Period”) by sending such Terms and Policies to Developer or
posting the same to MPT’s developer site. Once the Notice Period has expired, such revised Terms and
Policies will become effective and incorporated into this Agreement.
8.2
Performance Data
.
Any metrics, information, or material that relates to the performance, sales, downloads, or installs of any
Products, and any other information that can be used to infer the foregoing (e.g., revenue numbers),
(“Performance Data”) is the Confidential Information of MPT and its Affiliates, and Developer will not
disclose Performance Data to any third party, except to the extent permitted in accordance with Section 9
(Confidential Information) and only in an aggregated and anonymized manner that neither identifies, nor
would reasonably be expected to identify through further analysis, MPT, its Affiliates, the Platform, or
products, services, end users, and/or revenues associated with MPT or its Affiliates or the Platform (e.g.,
platform agnostic and not attributable or capable of being attributed to MPT, its Affiliates, or the
Platform).
9. CONFIDENTIAL INFORMATION.
9.1
Definition
.
In addition to the terms of the Electronic Non-Disclosure Agreement, each party agrees that all non-public
information of a party (the “Disclosing Party”) disclosed to, or obtained by, the other party (the
“Receiving Party”) under this Agreement relating to the subject matter of this Agreement constitutes the
confidential property of the Disclosing Party (
“Confidential Information”), provided, that,
it is identified
in writing as confidential at the time of disclosure (or, if disclosed verbally, is identified as confidential in
writing within thirty (30) days of the disclosure) or would reasonably be understood, given the nature of
the information or the circumstances surrounding its disclosure, to be confidential. Without limiting the
foregoing or the terms of this Agreement, the Developer Revenue report described in Section 5.3
(Payment) shall be deemed Confidential Information of MPT without any further marking or designation.
Should there be any conflict between the terms of the Electronic Non-Disclosure Agreement and this
Section 9, the terms of this Section 9 shall control during the Term of this Agreement.
9.2
Permitted Disclosures
.
Subject to Section 9.3 (Obligations and Exclusions), the Receiving Party may disclose the Disclosing
Party’s Confidential Information to the Receiving Party’s or its Affiliates’ employees, contractors, and
agents, including auditors, accountants, legal counsel, and other professional advisors, (collectively,
“Agents”), in each case, solely who have a need to know such Confidential Information and only to the
extent so needed, and only if such Agents are bound by confidentiality and non-disclosure obligations at
least as restrictive as the confidentiality and non-disclosure obligations in this Agreement. The Receiving
Party will remain fully responsible for any acts or omissions of its Agents in connection with this
Agreement, including any breach of the terms of this Agreement by such Agents and any such breach
shall be deemed a breach by the Receiving Party.
9.3
Obligations and Exclusions
.
Except as expressly authorized herein, the Receiving Party will not disclose any Confidential Information
of the Disclosing Party. The Receiving Party will not use any Confidential Information of the Disclosing
Party, except in connection with the purposes and performance of this Agreement. The Receiving Party
will take steps to safeguard Confidential Information of the Disclosing Party at least as stringent as the
Receiving Party uses for its own Confidential Information, but in no event less than reasonable steps. The
Receiving Party’s obligations in this Section 9 (Confidential Information) shall not apply to information
which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to
receipt of the Confidential Information from the Disclosing Party; (b) is or becomes public knowledge
through no act or omission of the Receiving Party, its Agents, or any wrongdoing or wrongful act of a
third party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any
confidentiality obligation of such third party; or (d) is independently developed by employees of the
Receiving Party without reference to Confidential Information of the Disclosing Party as evidenced by the
Receiving Party’s written records.
9.4
Judicial Process
.
The Receiving Party will not be in violation of this Section 9 (Confidential Information) if it is or
becomes subject to judicial or governmental proceedings or binding orders of governmental entities
requiring disclosure of certain Confidential Information of the Disclosing Party and the Receiving Party
discloses certain of such Confidential Information,
provided, that,
the Receiving Party: (a) provides the
Disclosing Party with notice sufficiently in advance of the disclosure (unless prohibited by Law from
doing so) to permit the Disclosing Party to seek a protective order or other confidential treatment of its
Confidential Information; (b) cooperates with the Disclosing Party in seeking a protective order or other
such confidential treatment of its Confidential Information; and (c) only discloses such portion of the
Confidential Information that is required to be disclosed.
9.5
Publicity
.
Developer will not make any public statement regarding this Agreement or any aspect of Developer’s
relationship with MPT or its Affiliates hereunder, without MPT’s or its Affiliate’s prior written consent.
For the purposes of this Section 9.5, public statements include disclosures to any person or entity other
than MPT by any means, including press releases, written or oral statements made to the media, blogs,
trade organizations, publications, websites, or any other public audience or unauthorized third parties.
9.6
Pre-Release Materials
.
If and to the extent MPT or its Affiliate provides, or makes available, to Developer any new products,
services, hardware, or software, or new versions, releases, or elements of existing products, Devices,
services, hardware, or software, (collectively, “Pre-Release Materials”), then such Pre-Release Materials
shall be considered Confidential Information of MPT. Notwithstanding anything to the contrary contained
or implied in this Agreement, Pre-Release Materials: (a) may only be used by Developer for internal
testing and evaluation purposes, and for no other purposes; (b) will be returned to MPT or its Affiliate by
Developer immediately upon request; and (c) are provided to Developer AS IS, without any
representations, warranties, or guarantees of any kind. Developer agrees to not (and to not permit any
third party to): (i) modify, copy, reverse engineer, disassemble, decompile or create derivative works of
the Pre-Release Materials; (ii) video, photograph, make any drawings of, or take any images or
measurements of the Pre-Release Materials; or (iii) open any case protecting the Pre-Release Materials, or
attempt disassembly of the Pre-Release Materials (or any case protecting the Pre-Release Materials) in
any way. In the event of any conflict between this Section 9.6 and the terms of any Pre-Release
Agreement, the terms of the Pre-Release Agreement shall control to the extent of the conflict.
9.7
Effect of Unauthorized Disclosures
.
The Receiving Party acknowledges that unauthorized disclosure or use of Confidential Information of the
Disclosing Party may cause irreparable harm for which damages may be difficult to ascertain or alone
may not be a sufficient remedy, and, therefore, that upon any such unauthorized disclosure or use by the
Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to
whatever other rights and remedies it might have.
9.8
Feedback
.
Developer may, but is not required to, provide suggestions, comments, ideas, questions, interviews, plans,
notes, drawings, original or creative materials, know-how or other information or materials, in any form,
to MPT or its Affiliates related to MPT or its Affiliates or their respective products, services, or
technology (“Feedback”). Any such Feedback shall not be considered Confidential Information and may
be disclosed or used by MPT and its Affiliates (and anyone they authorize) in any way and for any
purpose without any obligation to Developer.
9.9
Concurrent Development
.
The Disclosing Party acknowledges that the Receiving Party or its Affiliates may currently or in the
future be developing information, including products, services, concepts, systems, techniques or other
materials of any kind, or receiving information from other parties, that is similar or identical to the
Confidential Information provided by the Disclosing Party. Accordingly, nothing in this Agreement will
be construed as a prohibition on, or as a representation or agreement that the Receiving Party or its
Affiliates will not develop or exploit or have developed or exploited for its products, services, concepts,
systems, techniques, or other materials of any kind that are similar to or compete with any products,
services, concepts, systems, techniques, or other materials contemplated or described by or embodied in
the Confidential Information of the Disclosing Party,
provided, that,
the Receiving Party does not violate
any of its obligations under this Agreement in connection with such development or exploitation.
9.10
Return or Destruction
.
Upon request, the Receiving Party shall promptly destroy or (if specifically requested) return to the
Disclosing Party all documents or materials of any nature in the Receiving Party’s possession, custody, or
control (regardless of the media in which such documents or materials are stored, but excluding any
electronic copies of Confidential Information archived in the ordinary course of the Receiving Party’s
business and maintained in accordance with the Receiving Party’s standard document retention policies;
provided, such archived copies remain subject to the terms of this Section 9 (Confidential Information))
that have been furnished by the Disclosing Party to the Receiving Party, or reproduced or developed by
the Receiving Party based on the Disclosing Party’s Confidential Information, but, in all cases, subject to
Section 6.4(d).
10. REPRESENTATIONS AND WARRANTIES.
10.1
By Developer
.
Developer represents and warrants that (a) the Product(s), Developer Marketing Materials, Developer
Brand Features, any Content Information, and any functionality made available through the Product(s)
will not infringe or violate the rights, including any intellectual property or other proprietary, publicity, or
privacy rights, of any third party, entitle any third party to claim equitable remuneration, or violate any
applicable Law; (b) the Product(s) do not contain any malware, viruses, hacks, bots, Trojan horses, or
other malicious code; (c) Developer owns or has obtained all rights, licenses, and permissions, including
in connection with any third party copyrighted content, trademarks or publicity rights in names/likenesses
(including rights from applicable, performance rights organizations or third party license clearinghouses),
required to deliver a Product and Developer Marketing Materials to MPT, and permit MPT and its
Affiliates to exercise the rights and licenses set forth in this Agreement without any obligation of MPT or
its Affiliates to make any payments (including royalties, residuals, guild payments or payments to any
third party performers, creators, contributors, licensors or service providers), provide any attribution to, or
obtain approval from, any third party; and (d) Developer shall comply, and shall ensure that all Developer
Marketing Materials and Products (including any portion thereof) comply with all applicable Laws in
connection with this Agreement.
10.2
By MPT
.
MPT represents and warrants that the Platform and any MPT-manufactured Device related to performance
of this Agreement contain no malware, viruses, hacks, bots, or Trojan horses.
10.3
Disclaimers
.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY NOR ITS
AFFILIATES MAKES ANY, AND EACH PARTY AND ITS AFFILIATES HEREBY DISCLAIMS
ALL, PROMISES, REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EITHER EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE RELATING TO THIS
AGREEMENT OR ITS SUBJECT MATTER. DEVELOPER ACKNOWLEDGES AND AGREES THAT
DEVELOPER IS SOLELY RESPONSIBLE FOR ANY HEALTH AND SAFETY ISSUES RELATING
TO THE PRODUCT(S), INCLUDING ALL COSTS, DAMAGES AND OTHER LIABILITIES
ARISING OUT OF HEALTH AND SAFETY ISSUES ARISING FROM THE PRODUCT(S).
11. INDEMNIFICATION
11.1
Indemnification Obligations
.
Developer will defend (at MPT’s option), indemnify, and hold harmless MPTand MPT’s Representatives
(defined below) from and against any and all claims, actions, liabilities, losses, damages, judgments,
costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”) brought by a third party
against MPT or any MPT Representatives arising out of or related to (a) any breach or alleged breach by
Developer of this Agreement, including, any breach or alleged breach of Developer’s representations or
warranties herein; or (b) any health or safety issues arising from a Product or any content or functionality
made available therein. “Representatives” of a party means the party’s Affiliates, and each of the parties
and their Affiliates’ respective licensors, licensees, end users, and customers, including the directors,
officers, employees, contractors, agents, representatives, and service providers of any of the foregoing,
along with the successors and assigns of any of the foregoing.
11.2
Indemnification Process
.
MPT will notify Developer promptly of any Claim for which MPT or any MPT Representative seeks
indemnification pursuant to this Agreement;
provided, that
, MPT’s failure to provide prompt notice will
only relieve Developer of its indemnification obligations to the extent of any actual and material prejudice
arising from such delay. MPT may permit (at MPT’s option) Developer to control the defense of such
Claim with counsel Developer chooses;
provided, that,
Developer will not settle, compromise or resolve
any such Claim in a manner that imposes any liability or obligation on MPT or any MPT Representatives,
or affects MPT or any MPT Representatives’ rights, without obtaining MPT’s or the applicable MPT
Representatives’ prior written approval. In the event Developer is permitted to control the defense of a
Claim, MPT and any MPT Representative may, at its own expense, assist in the defense of such Claim if
it so chooses with counsel of its own choosing.
1.
LIMITATIONS OF LIABILITY.
12.1
General Limitation
.
NEITHER MPT NOR ANY OF THE MPT REPRESENTATIVES WILL BE LIABLE TO DEVELOPER
OR ANY OF DEVELOPER’S REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES SUFFERED BY DEVELOPER
OR ANY DEVELOPER REPRESENTATIVES ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ITS SUBJECT MATTER, FOR ANY AND ALL CAUSES OF ACTION OF ANY
KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF
WARRANTY) EVEN IF MPT OR ANY MPT REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE
FORESEEABLE.
12.2
Liability Cap
.
THE ENTIRE LIABILITY OF MPT AND THE MPT REPRESENTATIVES COLLECTIVELY UNDER,
OR WITH RESPECT TO THE SUBJECT MATTER OF, THIS AGREEMENT, SHALL NOT EXCEED,
IN THE AGGREGATE, THE GREATER OF ONE MILLION DOLLARS (USD $1,000,000) OR THE
AMOUNT ACTUALLY PAID OR PAYABLE BY MPT TO DEVELOPER UNDER THIS
AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING A CLAIM FOR DAMAGES**. **
12.3
Exceptions
.
THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED
WARRANTIES OR CERTAIN TYPES OF DAMAGES, SO SOME OR ALL OF THE DISCLAIMERS
AND LIMITATIONS OF LIABILITY IN THIS SECTION 12 AND SECTION 10
(REPRESENTATIONS AND WARRANTIES) MAY NOT APPLY TO DEVELOPER.
13. PROPRIETARY RIGHTS.
13.1.
Ownership
.
Each party retains all rights, title and interests in and to all of its intellectual property and other
proprietary rights, and no rights or licenses are granted to the other party therein in connection with this
Agreement, except the rights and licenses granted to MPT and its Affiliates pursuant to Section 2 (Grant
of Rights). Further, nothing in this Agreement shall be construed as conferring any license to any MPT or
its Affiliates’ intellectual property or other proprietary rights, whether by estoppel, implication, or
otherwise.
14. GENERAL PROVISIONS
14.1
Assignment
.
Neither party may assign or otherwise transfer the Agreement or its rights or obligations hereunder
without the other party’s prior written consent, except that either party may assign the Agreement (in
whole or in part) without consent to its Affiliates or pursuant to a transfer of all or substantially all of its
business and assets, whether by merger, sale of assets, sale of stock, or otherwise (each a “Change of
Control”),
provided, that,
(a) any of Developer’s successors, or any successor of substantially all of
Developer’s business or assets (each, a “Successor”), does not receive or have access to any Confidential
Information of MPT or its Affiliates without MPT’s or its Affiliates’ prior written approval, and (b)
Developer provides MPT with notice of any such Change of Control within thirty (30) days of the effect
thereof. Any attempted assignment or transfer in violation of the foregoing will be void. MPT may
delegate its obligations, in whole or in part, to its Affiliates. Any Successor of Developer shall be deemed
to be the “Developer” for purposes of this Agreement as of the effective date of any Change of Control;
provided, that
, the Developer assigning or otherwise transferring the Agreement or any of its rights or
obligations hereunder shall remain responsible for any and all liabilities arising prior to the effective date
of any Change of Control and to the extent arising from the Successor’s breach of its obligations under
this Agreement on and after the effective date of any Change of Control.
14.2
No Obligation to Distribute or Market
.
MPT and its Affiliates shall have no obligation to distribute the Product(s), and, if distributed, MPT does
not (a) guarantee specific placement of a Product or that a Product will generate revenue, or (b) have an
obligation to conduct any marketing or promotional activities for the Product(s).
14.3
Independent Contractor
.
The parties are independent contractors, and this Agreement does not create or imply an agency (except as
expressly permitted pursuant to Section 2.4 (Appointment)), partnership, or joint venture between them.
14.4
Governing Law and Jurisdiction
.
This Agreement and all related actions and proceedings shall be governed by the Laws of the State of
California and the United States without regard to conflicts of laws provisions thereof that would result in
the application of the Laws of any other jurisdiction, and without regard to the United Nations Convention
on the International Sale of Goods. The exclusive jurisdiction and venue for any claims or actions related
to the subject matter hereof shall be the California state courts located in San Mateo County, California
and the U.S. District Court for the Northern District of California located in San Francisco, California,
and each party hereby submits to the personal jurisdiction of such courts.
14.5
End User Disputes
.
MPT or its Affiliates may include in the TOS an arbitration provision that requires end users of Products
to agree to binding arbitration with respect to claims against MPT or its Affiliates, and Developer. If (a)
MPT or its Affiliates, and Developer are sued by a third party, (b) such suit relates to a Product, Content
Information, the Platform, the Platform Services, Developer Brand Features, Meta Brand Features,
Developer Marketing Materials, or Marketing Materials, and (c) MPT and/or its Affiliate has the right to
compel arbitration with respect to such suit (e.g., such suit is filed by an end user who is subject to the
TOS and the TOS includes an arbitration provision), Developer hereby consents to the arbitration.
14.6
Amendments; Waivers
.
MPT reserves the right to amend, supplement, or modify this Agreement on a going forward basis at any
time and in its sole discretion. If MPT makes any amendment, supplement or modification to this
Agreement, MPT will provide notice of such changes as appropriate, such as by sending an email
notification to the email address Developer has provided, providing notice through the Platform,
Developer’s Meta Account or Facebook account, or by updating the “Last Updated” date at the top of this
Agreement. Developer’s continued development, submission of Products, acceptance of Developer
Revenue, accessing the Platform, or other activities under this Agreement will confirm Developer’s
acceptance of the amended, supplemented or modified Agreement. If Developer does not agree to the
amended, supplemented, or modified Agreement, then Developer must stop all activity under this
Agreement. Developer should review this Agreement from time to time to ensure Developer understands
the terms and conditions that apply to Developer. No waiver will be implied from conduct or failure to
enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing
signed by a duly authorized representative on behalf of the party claimed to have waived, and the waiver
by either party of any provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
14.7
Severability
.
If any provision of this Agreement or application thereof shall be adjudged by any court of competent
jurisdiction to be illegal, unenforceable or invalid, that provision shall be limited (and deemed amended)
to the minimum extent necessary to render it legal, enforceable, or valid and to most nearly reflect the
intent of the original provision and all other provisions of this Agreement shall otherwise remain in effect.
14.8
Notices
.
Any notice hereunder shall be in writing as follows: (a) if to Developer, to the email address Developer
provided when creating Developer’s Meta Account or Facebook account; and (b) if to MPT, to 1 Meta
Way, Menlo Park, CA 94025, Attn: Meta Platforms Technologies Legal. Any notice provided to
Developer hereunder shall be deemed given one (1) day after it is sent to Developer’s email address. Any
notice provided to MPT hereunder shall be deemed given: (i) upon receipt if by personal delivery; (ii)
upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) one (1) day after
it is sent if by next day delivery by a major commercial delivery service.
14.9
Cumulative Remedies
.
Except as otherwise expressly provided in this Agreement, all remedies in this Agreement are cumulative
and in addition to (not in lieu of) any other remedies available to a party at law or in equity. In the event
of a claim by MPT for loss or damages for which Developer is responsible, MPT shall be entitled to
adjust the amounts claimed against future or outstanding payments due, or which may become due, to
Developer.
14.10
Force Majeure
.
Neither party will be liable for any delay or default in the performance of its obligations if such delay or
default is caused by conditions beyond its reasonable control, including, fire, flood, accident, epidemics,
pandemics, quarantines, earthquakes, strikes, civil commotions, labor disputes, act(s) of the public enemy,
act(s) or threatened act(s) of terrorism, law enforcement or government acts, telecommunications line
failures, electrical outages, network failures, freight embargoes, or acts of God (each, a “Force Majeure
Event”). If performance is delayed by more than thirty (30) days as a result of any Force Majeure Event,
the non-delayed party will be entitled to terminate this Agreement by written notice to the other party, so
long as such notice is received prior to the other party’s resumption of performance of this Agreement.
14.11
Entire Agreement
.
This Agreement and the Electronic Non-Disclosure Agreement are the complete and exclusive statement
of the mutual understanding of the parties, and supersede and cancel all previous written and oral
agreements and communications, relating to the distribution of the Product(s);
provided, however
, that
this Agreement does not supersede, cancel or amend any other Distribution Agreement mutually signed
by Developer and Meta Platforms Technologies, LLC and/or Meta Platforms Technologies Ireland Ltd.
(by ink or digital signature) that is in effect, and the terms and conditions of such other Distribution
Agreement shall continue and be the complete and exclusive agreement between the parties with respect
to the subject matter of such other Distribution Agreement.
14.12
Trade Compliance
.
Developer will comply with all applicable export controls, import controls and trade sanctions applicable
to a Device, Platform, Platform Services and Store (together “MPT-Provided Items”) as well as any
Product(s) or Developer Marketing Materials or Content Information related to a Product under this
Agreement. Developer represents and warrants that the Developer is not subject to any applicable UN,
US, UK or EU economic sanctions and trade restrictions. Developer will, when performing its obligations
under, or doing anything contemplated by, this Agreement, notify MPT in writing as soon as Developer
becomes aware of any loss of license/authorization or actual/potential investigations/breach in relation to
its obligations under this Agreement related to applicable sanctions or applicable law in respect of trade
control or any material change in its status in relation to compliance with such sanctions or trade control
laws. In no event will Developer provide MPT with Product(s), Developer Marketing Materials, Content
Information, or any other materials (including any DRM or encryption) that are (a) controlled for export
on a munitions list or (b) originated in or were transshipped through countries subject to comprehensive
U.S. trade sanctions Laws. Developer will be responsible for exporting and importing (including
temporary imports) all Product(s), Content Information, and Developer Marketing Materials required for
performance of the Agreement. In no instance may Developer list MPT as the importer or exporter of
record on any import, export, or other customs documentation for a transaction in which Developer is the
exporter or importer of record. Upon delivery or receipt of any MPT-Provided Items, Developer will
comply with all applicable export controls and trade sanctions Laws (including those governing
prohibited end-users and end-uses). MPT may immediately terminate this Agreement if Developer fails to
comply with this Section 14.13.
14.13
Legal Advice
.
The relationship between Developer and MPT established by this Agreement may have important legal
consequences for Developer. Developer acknowledges and agrees that it is Developer’s responsibility to
consult with legal advisors with respect to Developer’s rights and obligations hereunder prior to accepting
this Agreement.
14.14
Headings and Legal Interpretation
.
Any headings or captions are provided for convenience and shall be used for reference purposes only
without bearing on the interpretation of this Agreement. Additionally, any use of the words “include,”
“includes.” and “including” are not limiting and shall be construed to be followed by ”without limitation”;
no list of examples shall be deemed exhaustive, and the term “or” shall not be interpreted as exclusive.
