Distribute and grow
Distribute and grow

Electronic Developer Distribution Agreement

Updated: Apr 9, 2025
ELECTRONIC DISTRIBUTION AGREEMENT
Effective Date: May 9, 2025
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:

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.
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.
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.
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