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developer agreement

DEVELOPER AGREEMENT

This developer agreement (“Agreement”) is entered into as of [●], 2019 (the “Effective Date”), by and between [XRSPACE Co., Ltd.], a Taiwan corporation having registered address at 18F., No. 1351, Zhongzheng Rd., Taoyuan Dist., Taoyuan City 330, Taiwan (R.O.C.) (“XRSPACE”) and [●], a [●] corporation having registered address at [●] (“Developer”).

BACKGROUND
XRSPACE has an online marketplace referred to as “XRWorld” (“Platform”), or any other name designated to such Platform by XRSPACE, through which, among other things, it distributes third party applications.
Developer wishes to post, display, offer for sale, and distribute applications on the Platform and obtain certain development support from XRSPACE.

AGREEMENTS
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
DEFINITIONS. 
The following terms will have the following meanings as used in this Agreement. References to the singular include the plural and vice versa. 
“Adjusted Gross Revenue” shall mean, with respect to XRSPACE, the gross revenue actually received by XRSPACE from the sales of the Applications and any applicable in-app purchases through Platform, less the Applicable Adjustments.
“Applicable Adjustments” shall mean (a) actual costs resulting directly from returns, discounts, refunds, fraud or chargebacks for the Applications; (b) applicable VAT and sales Taxes. 
“Applications” shall mean the computer games or other applications developed by Developer to be posted, displayed, offered for sale, and distributed via Platform, including any Application Updates and any Localized Versions of such Applications. Applications include only the versions of such games or applications that operate on Windows, Macintosh, or Linux operating systems, or other operating systems supported by the Platform in the future.
“Application Updates” shall mean any updates, corrections, and enhancements provided by Developer for use by any end user of the Applications and shall include any such updates, corrections, and enhancements made available to third parties or end users. Application Updates include any DLC provided for an Application.
“Demo Version” shall mean any demonstration versions of the Applications, if any.
“DLC” shall mean any online content, features or software specific to an Application that is made available by Developer for purchase, download or online access separately from the Application, whether through in-app purchase transactions or otherwise (for example, but without limiting the foregoing, Application-themed virtual items, expansion packs, additional filters, codecs, stock multimedia, game scenarios or levels, additional functionality, etc.). DLC also includes any services provided with respect to an Application in exchange for a subscription payment.
“Localized Version” shall mean any versions of the Applications created for specific languages or jurisdictions.
“Platform User” shall mean an end user registers an account with the Platform and through which obtains one or more Applications via Platform.
“Territory” shall mean (a) worldwide or (b) the nations authorized for distribution by Developer on the Platform, if Developer has restricted an Application's distribution territory through the online tools provided by XRSPACE for this purpose.

TERMS. 
The term of this Agreement (the “Term”) shall commence on [●], 2019, and will continue for two (2) years; provided, however, that the Term may be extended for additional [●] year with XRSPACE’s prior written notice of its consent to extend.

PLATFORM MATERIALS.
XRSPACE may make available, at its sole discretion, certain software, software development kits, libraries, application programing interfaces, services, documentation, sample code, related materials, information, and equipment for use in connection with the Platform or other services, programs, and/or features (collectively, the “Platform Materials”). 
Subject to Developer's compliance with Section 3.3, XRSPACE hereby grants to Developer a nonexclusive, royalty-free, worldwide right and license to use and reproduce the Platform Materials internally, solely to develop, evaluate and test by Developer of the Application; 
Developer shall, and cause its personnel to, comply with the following requirements:
maintain the confidentiality of any account access credentials that may be issued to Developer by Platform or XRSPACE to access any Platform Materials;
use Platform Materials only in connection with the Platform or any other programs or services designated by XRSPACE, unless the documentation for the applicable Platform Materials authorizes broader use;
not distribute via Platform or combine any Platform Materials with, open source or other software that is licensed under terms that purport to bind XRSPACE to contractual obligations (e.g. the GNU General Public License or Lesser General Public License), without prior discussion with and separate written agreement from XRSPACE;
distribute sample source code (if any is provided) only in object code form as part of Application; 
not permit any third party to distribute the sample source code; 
not decompile, decipher, disassemble, reverse engineer, disable, tamper with or otherwise work around technical limitations of the Platform Materials, except as expressly permitted by applicable law notwithstanding this limitation; 
not modify or make any derivative works of the Platform Materials in whole or in part, except as expressly permitted herein; 
not remove any proprietary notices or labels on the Platform Materials, or any copy thereof;
not use the Platform Materials, to infringe the rights of XRSPACE, its affiliates, or any third party; 
not sell, resell, rent, lease, lend, or sublicense the Platform Materials, except as expressly permitted herein; and
not make use of the Platform Materials in any manner not permitted by XRSPACE.
 XRSPACE may provide Developer with necessary support to solve issues encountered during development. However, Developer are solely responsible for ensuring Applications function properly with any Platform Materials used by Developer, including any future updated or modified versions of those Platform Materials. 
The Platform Materials are the intellectual property of XRSPACE or its licensors. Except for the rights explicitly granted to Developer under this Section 3, all right, title and interest in and to the Platform Materials are reserved and retained by XRSPACE and its licensors.
If the Agreement is terminated, Developer must cease all use of the Platform Materials.

DEVELOPER’S OBLIGATION. 
Platform Compatibility.
Developer shall make the Applications compatible with Platform and any services on Platform that Developer may choose to use. Developer shall, in cooperation with XRSPACE, use reasonable efforts to maintain compatibility of the Applications with future versions of Platform.
QA. 
Developer shall perform quality assurance and other error testing of the Applications, consistent with industry standards, prior to its delivery of final versions of each to XRSPACE. 
DLC. 
If Developer distributes the Application through any other non-Platform distribution channel, and if Developer distributes any material DLC for the Application through that other channel, it will deliver the DLC to XRSPACE at the same time such that the Platform Users will receive comparable DLC with customers acquiring the Application through other channels. Developer is free to offer special and unique promotional content through other distribution channels, provided that material parity is maintained between Platform Users and users of other distribution channels who make a comparable investment in the Application and the associated DLC.
No Other In-Application Stores. 
The parties agree that Applications distributed via Platform will not include functionality from or links or references to any store other than Platform, or any other facility for making purchases or payments. For clarification, the preceding sentence does not apply to versions of Applications that are distributed outside of Platform (whether at brick-and-mortar retail stores or online).
Application Items and/or Currency. 
To the extent any Application supports the sale of digital items or digital currency for use in the Application, Developer shall not allow or facilitate the redemption or exchange of such digital items or digital currency for real-world currency.
Developer Support to XRSPACE. 
Developer shall provide XRSPACE with the following support for the Applications: (a) deliver all Application Updates, in object code form, made to the Applications, in beta and final forms, when available but in no event later than they are provided to any other third party; (b) promptly correct all material errors or defects in the Applications reported by XRSPACE and deliver such corrections to XRSPACE in object code form in a timely fashion; (c) provide such other reasonable additional support as XRSPACE may reasonably request in order to maintain compatibility of the Applications with the Platform and, if applicable, with any Platform services used by the Application; and (d) promptly respond to XRSPACE's questions regarding the Applications. Upon delivery to XRSPACE of final versions of any corrections and enhancements or other deliverables under this Section, those materials shall be deemed to be part of the Applications.
Developer is responsible for providing required information to Platform Users including, but not limited to, a terms of use and/or license agreement and a privacy policy, compatibility requirements, health and safety information, and accurately disclosing all permissions and consents necessary for Applications to function. 
Developer must ensure that the Applications, its terms of use and/or license agreement, privacy policy, and all related information comply with all applicable country specific laws and regulations.
Platform Users who have purchased the Application are allowed unlimited reinstalls of that Applications at no additional charge even when this Agreement is terminated between the parties.

SUBMISSION OF APPLICATIONS.
Developer shall submit the Applications, including APK or any other materials requested by XRSPACE (collectively “Application Materials”) for XRSACE’s review before any release on the Platform. XRSPACE will review the Application Materials based on the submission guidelines as listed in Exhibit A. XRSPACE does not guarantee any approval of the Applications and XRSPACE may notify Developer of any changes or corrections to be made in connection with the Applications Materials. 
If approved by XRSPACE, the sponsor  will provide a development bonus to Developer. The amount of bonus, payment terms and timeline will be separately agreed between the sponsor and Developer. However, Developer shall submit the Application Materials to XRSPACE before [10th December, 2019/ 31st January, 2020] or any other date agreed by XRSPACE in writing for XRSPACE’s review. If Developer fails to submit the Application Materials in time, XRSPACE may terminate this Agreement. To the extent that the Agreement includes versions of an Application for multiple operating systems (e.g. a Windows version, a Linux version and an Apple OS version) such versions shall be sold together as a single "hybrid" Application unit on Platform. Therefore, an Apple OS version of any Application, a Linux version of an Application, and a Windows version of an Application shall not be considered as separate sales when calculating the payment obligations pursuant to Section 5.2.
Notwithstanding anything to the contrary herein, XRSPACE reserves the right, in its sole discretion, (i) to determine whether or not to display Applications in the Platform, (ii) to determine the date the Applications is first displayed in the Platform, (iii) to remove Applications from the Platform at any time with or without advance notice, and (iv) to display Applications in the Platform in any order or level of prominence as it deems appropriate in its sole discretion.

LICENSES; OWNERSHIP.
License for XRSPACE to Use the Applications.
Developer hereby grants to XRSPACE a non-exclusive, worldwide, royalty-free license to internally reproduce, use and modify the Applications in object code format for general access and as necessary to (a) enable the use and distribution of the Applications (including Demo Versions, Localized Versions and Application Updates) via Platform, (b) support the Platform Users who acquired the copy of the Applications via Platform in the event Developer fails to fulfill its obligations under Section 4.6.
Electronic Delivery License.
Developer hereby grants to XRSPACE a non-exclusive license to reproduce, publicly display and perform, transmit, sell, license and otherwise distribute the Applications in object code form via Platform and through any type of payment method to Platform Users in the Territory. To the extent that the Agreement includes versions of an Application for multiple operating systems (e.g. a Windows version, a Linux version and an Apple OS version) such versions shall be sold together as a single "hybrid" Application unit on Platform. Therefore, an Apple OS version of any Application, a Linux version of an Application, and a Windows version of an Application shall not be considered as separate sales when calculating the payment obligations pursuant to Section 7. In the case of Demo Versions available outside of Platform, if any, if such a Demo Version includes a reference to how/where to purchase the Application (e.g., screens on start or exit), Developer shall cooperate with XRSPACE to include a reference to Platform in that location.
Trademark and Copyright License for Applications Marketing. 
Developer hereby grants to XRSPACE a worldwide, nonexclusive, royalty-free license, during the Term, to use, publicly display and perform, reproduce, distribute and display the trademarks, including logos, used for the Applications, materials from the Applications (e.g., screenshots, movies, etc.), and marketing material (the “Developer Marks”) as part of or in connection with promotion, marketing, licensing or sale of the Applications.
Ownership; Reservation of Rights. 
Except as expressly provided herein, Developer retains all right, title and interest in and to the Applications and Developer Marks, and XRSPACE retains all right, title and interest in and to Platform. All rights not expressly granted hereby are reserved by each of the parties.

REVENUE SHARING.
XRSPACE shall pay certain amount of the Adjusted Gross Revenue generated from the sales of the Applications (including any in-app purchases) via Platform to Developer based on the calculation method listed in Exhibit B (“Compensation”). Details on the payment of the Compensation will be further agreed between the parties in a separate agreement.
Whenever XRSPACE is to pay any sum to Developer, XRSPACE shall have the right to deduct or offset from any amount Developer owes or shall bear or otherwise be liable to XRSPACE hereunder without the consent of Developer.
 
DISCLAIMER.
.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVELOPER’S USE OF THE PLATFORM AND PLATFORM MATERIALS IS AT YOUR SOLE RISK AND THE PLATFORM AND PLATFORM MATERIALS ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” AND THE ENTIRE RISK OF USE AND PERFORMANCE, REMAINS WITH DEVELOPER. XRSPACE AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NONINFRINGEMENT.
Developer warrants that (a) it originally created the Applications, any Demo Version and the Developer Marks, or has the rights necessary to grant the licenses it has granted, and to fulfill its obligations, under this Agreement; (b) the Applications delivered to XRSPACE will conform in all respects to the functional and other descriptions contained in any documentation for the Applications, the system requirements for the Applications, and any marketing materials for the Applications; (c) the Applications, any Demo Versions and the Developer Marks do not violate, infringe or misappropriate any copyright, trade secret, trademark, or right of publicity or privacy of any third party; (d) Developer will comply with all applicable international, national, state, regional and local laws and regulations (including The EU General Data Protection Regulation and the rules or requirements of telecommunication providers) and its own privacy policy in connection with its distribution of any version of the Application, (e) Developer has all necessary rights to any content or information it submits to XRSPACE; (f) the Applications and any Demo Versions do not: (i) contain any software viruses, trojan horses, or any other computer code, files or programs that are designed or intended to disrupt, damage or limit the functioning of any computer software or hardware or to damage or obtain unauthorized access to any data or other information of XRSPACE or any third party, (ii) cause physical harm, (iii) disable or change any safety feature of Platform or VR devices, or (iv) contain any other materials that are unlawful, defamatory, or libelous.

PUBLICATION OF AGREEMENT. 
Except as may otherwise be required by law, Developer shall keep this Agreement and its provisions confidential and shall not disclose the foregoing, without first obtaining the written consent of XRSPACE, which consent shall not be unreasonably withheld. The confidentiality obligations hereunder do not apply to the existence of this Agreement or to the fact that XRSPACE and Developer have executed this Agreement but do apply to all of the other terms and conditions of this Agreement. Any press release or other announcement by either party concerning the entering into of this Agreement shall be subject to the prior written approval of the other party.

TERMINATION.
Either party may terminate this Agreement with thirty (30) days prior written notice and shall be terminated immediately if the other party is in material breach of any warranty, term or condition of this Agreement and has failed to cure that breach within thirty (30) days after written notice thereof. In the event of any termination of this Agreement, XRSPACE will stop displaying Application in the Platform; however, XRSPACE may retain and use copies of the Application (i) in the part of the Platform where previously purchased or downloaded Applications are stored on behalf of Platform Users and (ii) for support of the Platform, the XRSPACE or other virtual reality systems, and/or users who previously purchased the Application. 

INDEMNITY. 
Developer will indemnify, defend, and hold harmless XRSPACE and its Affiliates, successors, officers, directors and employees from any cost, loss, liability, expense or damage (including reasonable attorneys' fees) (“Liabilities”) arising out of any action, cause of action, claim or demand (a “Claim”) arising out of or relating to (i) Developer’s use of the Platform or Platform Materials in violation of this Agreement, (ii) any allegation that Developer’s Application infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, (iii) Developer’s breach of the representations, warranties or covenants set forth herein, and (iv) damage to tangible property, bodily injury or death sustained as a result of using Application. 

ASSIGNMENT. 
Developer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement without XRSPACE’s prior written consent. XRSPACE may assign its rights or obligations under this Agreement to any of its affiliates. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. For purposes of this Section 12, an “assignment” by Developer under this Section shall be deemed to include, without limitation, any merger, consolidation, sale of all or substantially all of its assets, or any substantial change in the management or control of Developer. Any attempted assignment in contravention of this Section12 shall be void.

NOTICES. 
Unless otherwise provided herein, all notices under this Agreement shall be in writing, specifically refer to this Agreement, and be delivered in person or sent by international carrier, courier, overnight mail or electronic mail to the parties at their respective addresses set forth below. The notice details provided below may be updated upon written notice to the other party, which notice shall expressly reference this Agreement and may be provided in electronic format via email.  

If to XRSPACE, to:
XRSPACE Co., Ltd. 
Address: 10F., No. 6, Sec. 3, Minquan E. Rd., Zhongshan Dist., Taipei City 104, Taiwan (R.O.C.)
Attention: Kurt Liu
Email: kurt.liu@xrspace.io


If to Developer, to:
[●]
Address: [●]
Attention: [●]
Email: [●]


ENTIRE AGREEMENT.  
This Agreement, including all exhibits, constitutes the complete and final agreement between the parties, and supersedes all prior and contemporaneous negotiations and agreements between the parties concerning its subject matter.

APPLICABLE LAW. 
This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding the U.N. Convention on International Sale of Goods, without regard to conflict of laws principles. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three (3) arbitrator(s). The language of the arbitration shall be English.

SEVERABILITY. 
If any provision of this Agreement is found or held to be unenforceable or invalid by any legally governing authority having jurisdiction over either party, the provision shall be severed, and the remainder of this Agreement shall be valid and enforceable. The parties shall negotiate in good faith a substitute provision that most nearly affects the parties’ original intent.

AMENDMENT; WAIVER. 
XRSPACE may unilaterally modify this Agreement including its exhibits, in whole or in part, by posting a notification in the Platform or Platform site. Developer should regularly check for notice of any modifications. XRSPACE may, but need not, also notify Developers of such modifications via email. Modifications will become effective, and will be deemed accepted by Developers, thirty (30) days after the modifications are posted (except modifications required by law which will be effective immediately). If Developer do not agree with the modifications to the Agreement, Developer must terminate the use of the Platform, which will be the sole and exclusive remedy of Developer. Developer agrees that continued use of the Platform constitutes Developer’s agreement to the modified terms of this Agreement.
No waiver of any term or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be a further or continuing waiver of that term or condition or a waiver of any other term or condition.  The interpretation of this Agreement may not be explained or supplemented by any course of dealing or performance, or by usage of trade.  

COUNTERPARTS. 
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date first set forth above.

XRSPACE Co., Ltd. 



[Developer]
BY:______________________________
BY:______________________________
Print name:
Print name:
Title:
Title:

Exhibit A
Submission Guidelines

XRSPACE will review the Application Materials according to the Submission Guidelines below in XRSPACE’s sole discretion: 

Submission Guidelines
Product Experience
In-Application Content
Store Asset
Packaging
Prohibited Content
Cover
Performance
XRSPACE Platform Abuse Policy
Banner
Function
Comfort Ratings
Logo
Security
Video Container Apps
Icon
Tracking
Data Collection
Screenshot
 Input
Payments
Trailer
 Asset
Content Ratings
Cubemap/Skybox


IARC




GRAC




Restricted Use of XRSPACE Name and Logos


Other review standards which XRSPACE deems necessary.

XRSPACE may unilaterally add, alter, modify or waive any review standards listed in this Exhibit A at its sole discretion.  XRSPACE may create a website or a web page for posting notices or updates of the submission guidelines.  Developer has to check and follow the latest notices or updates of the submission guidelines at the website or the web page, with or without a notification from XRSPACE.  XRSPACE may use a third party to review the Applications Materials. Third party, including but not limited to the sponsor, may also impose review guidelines in addition to the submission guidelines hereof. Developer agrees to comply with any such additional review guidelines upon notification. Any review conducted by XRSPACE or any third party does not guarantee the Applications or any of its contents are legal or in compliance with any laws or regulations in any applicable jurisdiction. No review under this Agreement shall be deemed as a waiver of any term or condition of this Agreement or any liabilities arising hereunder.

Exhibit B
Compensation

Timeline
Specification
One-time Payment
Year one
Any gross revenue generated from the sales of the Applications (including any in-app purchases)
Developer will receive 100% of Adjusted Gross Revenue as Compensation
Year two
Any gross revenue generated from the sales of the Applications (including any in-app purchases)
Developer will receive 100% of Adjusted Gross Revenue as Compensation
Year three and forward
Any gross revenue generated from the sales of the Applications (including any in-app purchases)
Developer will receive 70% of Adjusted Gross Revenue or other percentage agreed between XRSPACE and Developer as Compensation.