Amazon Android App Store T&Cs Leak

Amazon still aren't talking about the rumored Android app store they're tipped to be working on – which would sit alongside the official Android Market and offer users an alternative source for software – but the App Store Distribution Agreement participating developers would be expected to abide by has just dropped in the SlashGear inbox.  Among the T&Cs are confirmation on the developer royalties – "equal to the greater of (i) 70% of the purchase price or (ii) 20% of the List Price" – together with the rumored $99 annual fee and the fact that Amazon retains the right to modify your binaries and add in their own DRM.

Meanwhile Amazon also retails a free copy of each title – for subsequent downloads from the store by users who have already paid for the app, even if you have withdrawn it from sale – and sets out the timing issues that cover software distributed on multiple stores.  For instance, "The Initial Availability Date must be no later than the first date you permit the App to be listed for pre-order or sale on any Similar Service."

We're waiting on an official comment from Amazon, and it's worth noting that we haven't been able to corroborate the agreement with anyone else.  Still, if it's authentic and at the stage where legal documentation is being drawn up, it doesn't look like an official unveil could be far off.

APP STORE DISTRIBUTION AGREEMENT

This is an agreement between Amazon Digital Services, Inc. (together

with its affiliates, "Amazon," "we" or "us") and you (if registering

as an individual) or the entity you represent (if registering as a

business) ("Developer" or "you"). Before clicking to accept, please

carefully read this agreement and all terms, rules and policies that

we make available for participating in this program, including on the

amazon.com website or our developer portal (together, the "Program

Policies"). This agreement and the Policies are referred to together

as the "Agreement".

* 1. The App Store Program. "Apps" are software applications,

games or other digital products that you deliver to us, including any

content, ads, services, technology, data and other digital materials

included in or made available through such products, together with

their enhancements, upgrades, updates, bug fixes, new versions and

other modifications and amendments. You authorize us to promote, sell

and distribute Apps as provided in this Agreement, including through

the amazon.com website or any other web page real estate, online point

of presence, application, mobile interface, service, or user interface

that allows for the discovery, download and purchase of Apps from us,

including the Amazon Associates program and similar programs.

* 2. Basic Terms.

o a. Royalty. For each sale of an App, we will pay you a

royalty ("Royalty") equal to the greater of (i) 70% of the purchase

price or (ii) 20% of the List Price (defined in and subject to section

5i) as of the purchase date. No Royalty is payable for Apps with a

List Price of $0.00. Such purchase price excludes taxes and any

separately stated fees or charges. A Royalty is due only for sales for

which we have received final payment from or on behalf of an end user.

If an App is purchased using a credit card or bank account deduction

mechanism, final payment will be deemed to have occurred when the

applicable credit card company or bank has fully settled the payment

for the applicable purchase.

o b. Program Fees. You will pay an annual program fee of

US$99 to participate in this program. The initial fee is due within 15

days after you accept this Agreement and subsequent fees will be due

on the anniversary of such date. We do not charge a listing fee for

Apps.

o c. Territory. The U.S. and its territories and possessions.

o d. Platform. Android.

* 3. Delivery of Apps and Information.

o a. Delivery Commitment for Apps. You will deliver

electronically to us (and continue to make available during the Term

all versions of all software applications, games or other digital

products (including any special or collector's editions) (i) that are

designed for the Platform, (ii) for which you have the rights required

under this Agreement, and (iii) that are the same versions and

editions (except as otherwise provided in this Agreement) that you or

your affiliates make available directly or indirectly to any Similar

Service. A "Similar Service" is any online distribution service that

makes Apps available for sale or download to end users in the

Territory using a mode of distribution similar to those used by this

program, including any mobile or Internet-based application marketing,

sales and distribution service. You may also choose to deliver any

other Apps that are designed for the Platform and meet the

requirements of this Agreement. While an App is available for

download, you will deliver any bug fixes, patches, and other updates

to the Apps, together with any related Required Product Information

(defined in section 3b), as soon as they are available. You will

ensure that each App complies with this Agreement, including our

Program Policies related to App content.

o b. Timing of Deliveries. You will deliver Apps that are

already publicly available for pre-order or sale at the time you

accept this Agreement within 14 days after you accept this agreement.

You will deliver future Apps within 14 days before the initial

availability date you designate for the App (the "Initial Availability

Date"). The Initial Availability Date must be no later than the first

date you permit the App to be listed for pre-order or sale on any

Similar Service. Together with delivery of each App you will also

provide the following information: App title, Initial Availability

Date, category, Developer name, publisher name (where applicable),

List Price (subject to 5i), product description, icon/image, and any

other information related to the Apps that we require (together,

"Required Product Information").

o c. Accuracy of Product Information. You are responsible

for providing accurate Product Information. "Product Information"

includes the Required Product Information and any other information

and content related to Apps and/or to you, such as (a) all metadata,

graphics, artwork, images, trademarks, trade names, logos and other

descriptive or identifying information and materials associated with

you or a particular App, (b) the excerpts created in accordance with

Section 4b(ii), and (c) any Developer's EULA (defined in section 5a).

If any Product Information is inaccurate or needs to be updated or

modified, you will promptly provide us with corrections, updates, or

modifications.

* 4. Grants of Rights.

o a. Distribution. You hereby grant us the nonexclusive,

irrevocable (subject to sections 7 and 8), royalty-free right to sell

and distribute Apps through this program to end users in the

Territory, by all means of electronic distribution available now or in

the future. You also hereby grant us the nonexclusive, irrevocable,

royalty-free, worldwide rights to (i) use, evaluate and test Apps,

Product Information, and any embedded advertising (together,

"Content"); (ii) reproduce and store your Content in digital form on

one or more computer facilities, and modify and add to your Content in

order to implement technologies enabling digital rights management,

all for the purpose of promoting, selling and distributing the Apps

and in connection with this program; and (iii) retain, after the Term,

one or more electronic copies of each App and associated Product

Information and allow access to and downloads and re-downloads of Apps

by end users as provided in this Agreement.

o b. Promotion. You hereby grant us the nonexclusive,

irrevocable, royalty-free, worldwide rights to (i) use, reproduce,

distribute, reformat, create excerpts from, promote, advertise,

transmit, and publicly display and perform the Product Information in

any and all digital and other formats for promotional purposes in

connection with this program (except that we will not use any

trademarks you provide for purposes of us selling an App after the

withdrawal of that App as described in Section 7 or after the Term),

and (ii) create, reproduce, distribute, reformat, transmit, and

publicly display and perform limited excerpts of Apps for promotional

purposes in any and all digital formats during the Term.

o c. Additional Rights. In addition, we may exercise

ancillary rights that are reasonably necessary to effect the intent of

the grants of rights contained in this Agreement, including but not

limited to the rights to package, encode, store, transmit, create

derivative works based on, and publicly perform and display Content to

effectuate such rights. We may also sublicense our rights in Product

Information under this Agreement to third parties operating the

websites or online or mobile points of presence described in Section

1. Nothing in this Agreement restricts us from exercising any right

available to us under applicable law or any separate license.

o d. Reservations of Rights. Subject to the rights granted

in this Agreement and our ownership of certain software, documentation

and related materials (the "App Store Materials") to which we provide

you access,, as between you and us, you retain all right, title and

interest in and to Content that you deliver to us. Subject to your

rights in such Content, we retain all right, title and interest in and

to this program and all technology, content, information, services,

trademarks and other intellectual property used in connection with it.

Without limiting the foregoing, each of us recognizes that any uses of

the other's (or its affiliates') brand features in connection with

this Agreement, and goodwill associated with such uses, will inure

solely to the party owning such brand features. If you provide

suggestions, ideas, or other feedback to us about this program, we

will be free to exercise all rights in such feedback without

restriction and without compensating you.

* 5. Additional Program Terms

o a. EULA. You may provide a EULA ("Developer's EULA") with

any App if it complies with the requirements of, and is not

inconsistent with, this Agreement. You agree that the provisions of

our customer terms of use for the program which we designate as

default end user license terms ("Default EULA Terms") will apply to

end users' use of the Apps. The Default EULA Terms will specify, among

other things, that you are the licensor of the Apps and that we are

not parties to your EULA. If there are any conflicts between the

Default EULA Terms and Developer's EULA, then to the extent of such

conflict the Default EULA Terms will control. We do not have any

responsibility or liability related to compliance or non-compliance by

you or any end user under a Developer's EULA or the Default EULA

Terms.

o b. Privacy-Related Obligations. If you have access to any

name, password, other login information, or personally identifiable

information of any end user of our program based on any use of or

interaction with the Apps, you will (i) provide legally adequate

privacy notices to such end user, (ii) use and authorize others to

access and use it only for the purposes permitted by the end user, and

(iii) treat, store and use the information in accordance with the

applicable privacy notice and applicable laws, rules, regulations,

orders, and other requirements of governmental agencies (together,

"Laws").

o c. DRM; Usage Policy. You will apply to the Apps the

digital rights management technology we make available, and will not

incorporate any other digital rights management technologies into the

Apps. You may choose whether to allow end users who have purchased an

App to (i) download and/or make unlimited free copies of the App or

(ii) download unlimited free copies of the App only to devices that

are designed for the Platform and authenticated to the amazon.com

customer account used for the initial purchase of the App.

o d. Embedded Advertising. You will ensure that any

advertising presented to end users of the Apps complies with all

requirements of this Agreement. For example, (i) your access to and

use of information related to App end users' use of embedded

advertising must comply with our privacy-related requirements; (ii)

embedded advertising must comply with the Program Policies at the time

such advertising is accessed by any App end user; and (iii) embedded

advertising must not contain any "spyware," "malware" or harmful code

and must not cause injury to any person or damage to any property.

o e. License to App Store Materials. You may access, use and

reproduce the App Store Materials during the Term solely for the

purpose of developing and testing Apps for submission under this

Agreement and in order to incorporate required App Store Materials in

Apps. You will not otherwise distribute the App Store Materials to

third parties. You will not use or authorize a third party to use the

App Store Materials in any manner (e.g., by combining them with some

types of open source software code) that would result in a requirement

that the App Store Materials or any portion thereof be redistributable

at no charge, distributed or disclosed in source code form, or

licensed for unrestricted modification by others.

o f. Prohibited Actions. You may not reverse engineer,

disassemble or decompile any binary code used in connection with this

program, including any App Store Materials we provide you. You will

not take any action related to this program that interferes with,

damages, or accesses or uses in any unauthorized manner the hardware,

software, networks, technologies or other properties or services of

ours or of any end user, mobile operator or other third party.

o g. Our Operations. We have sole discretion to determine

all features and operations of this program and to set the retail

price and other terms on which we sell Apps. For avoidance of doubt,

if end users download an App that is free of charge, that App will be

deemed to be "purchased" by the end user for purposes of this

Agreement. You acknowledge that we have no obligation to promote,

distribute, or offer for sale any App, or to continue to do so. We are

responsible for and have sole discretion related to processing

payments, collecting payments, addressing requests for refunds, and

providing customer service related to our obligations, and we will

have sole ownership and control of all sales and other data we obtain

from end users in connection with this program.

o h. Support. You will provide reasonable technical and

product support for Apps as requested by end users or us or as

described in our Program Policies. Your technical support will include

levels of availability, response times and technical skills that are

at least equivalent to those for the support you provide to end users

of Similar Services. Without limiting the previous sentence, at a

minimum you will respond within 24 hours to any support request that

we identify as critical, and in all other cases within five business

days of request from an end user or us.

o i. List Price. The "List Price" for an App is an amount

that does not exceed, at any time, the lowest list price or suggested

retail price for such App (including any similar edition, version or

release) available or previously available on any Similar Service or

the lowest actual price at which you make or made such App available

for sale through any Similar Service. You will update the List Price

for each App as necessary to ensure that it meets the requirements of

this section 5i.

* 6. Royalty Payments and Reporting

o a. Royalties. Subject to the terms of this paragraph, we

will pay you Royalties approximately 30 days after the end of the

calendar month in which the applicable sale is made. At the time of

payment, we will make available to you a report detailing sales of

Apps and corresponding Royalties. All payments will be made in US

dollars (US$). If you are located in the United States, you will

provide us with information on a valid US bank account in your name,

and we will make payments to that account via Electronic Funds

Transfer ("EFT"). If you are located outside the United States, we

will pay you via check sent to a mailing address you provide for such

purpose. We are entitled to accrue and withhold payments, without

interest, until the total amount due to you (net of any tax

withholding, as further described below) is at least US$10.00 for

payments we make via EFT or US$100.00 for payments we make by check.

You may not maintain any action or proceeding against us with respect

to any report or payment unless you commence that action or suit

within 6 months after the date the report or payment was due. If we

pay you a Royalty on a sale and later issue a refund or credit to the

end user for such sale (or receive a chargeback related to the sale),

we may offset the amount of the Royalty we previously paid you against

future Royalties or other amounts that would otherwise be payable to

you under this Agreement, or require you to remit that amount to us.

We may also withhold and offset any sums you owe to us against amounts

that are payable to you. If a third party asserts that you did not

have all rights required to make available an App to us, if we

determine that you may be in breach of this Agreement, or if we have

other claims against you, we are entitled to hold all Royalties

pending resolution of such issue. When this Agreement terminates, we

may withhold all Royalties due for a period of three months from the

date they would otherwise be payable, in order to ensure our ability

to offset any end user refunds or other offsets to which we are

entitled.

o b. Taxes. We are responsible for collecting and remitting

any taxes imposed on sales of Apps to end users. You are responsible

for any income or other taxes due and payable resulting from our

payments to you. Accordingly, unless otherwise stated, the amounts due

to you hereunder are inclusive of any taxes that may apply to such

payments. We maintain the right, however, to deduct or withhold any

applicable taxes payable by you from amounts due from us, and the

amounts due, as reduced by such deductions or withholdings, will

constitute full payment to you.

* 7. App Availability; Withdrawal. We may determine in our

discretion to make any App available through our program. We may stop

any transaction, or take other actions as needed to restrict access to

or availability of any Content that does not comply with this

Agreement or that otherwise might adversely affect end users.

Inclusion of the App in our program, or any withdrawal of an App, does

not relieve you of responsibility to ensure the App complies with this

Agreement or to perform other obligations under this Agreement.

Subject to other terms of this Agreement, you may withdraw an App from

further sale through our program as of a specified date by giving us

notice. We will use commercially reasonable efforts to stop selling

the App within 10 business days after we receive such notice, and

within 5 business days after such receipt in connection with a

withdrawal request which you've designated as necessary because of an

unexpected loss of (or third party claim related to) the rights

required under this Agreement. You will immediately notify us if you

unexpectedly lose such rights or become aware of a third party claim

related to these rights. Any withdrawal by you will apply only to

future end user purchases after the withdrawal date and not to

purchases that have already occurred, unless we otherwise determine in

our discretion.

* 8. Term and Termination; Suspension. The term of this Agreement

(the "Term") will begin on the date you click to accept it and will

continue until you or we terminate it. We are entitled to terminate

this Agreement and access to your program account at our discretion

with or without advance notice to you. You are entitled to terminate

at any time by giving us at least 10 days advance written notice, in

which case we will stop selling the Apps as of the date your

termination takes effect. We may also suspend your participation in

our program at our discretion with or without notice to you. Following

any termination or suspension, we may fulfill any end user orders for

the Apps pending as of the date the termination or suspension takes

effect. Also, unless we otherwise determine in our discretion, any

termination or suspension will not affect further access, downloads or

re-downloads of Apps by end users who have purchased the App before

the date the termination or suspension takes effect, nor their rights

in previously-downloaded Apps. We are not obligated to return copies

of any Content or other materials that you provide. The following

provisions of this Agreement will survive termination of this

Agreement: Sections 4, 5a, 5b, 5c, 5d, 5e, 5f, 5h, 6, 9 through 14,

all Developer representations and warranties in this Agreement, and

any other provisions that, by their nature, are intended to survive.

All rights to Apps acquired by end users will survive termination.

* 9. Representations and Warranties. You represent, warrant and

covenant that:

o a. You are at least the legal age of majority and that you

are able to form a legally binding contract. If Developer is a

business or other legal entity and not an individual, then the

individual entering into this Agreement on Developer's behalf

represents that he or she has all necessary legal authority to bind

Developer to this Agreement;

o b. You have the full right, power, and authority to enter

into and fully perform this Agreement;

o c. Before providing us any Content, you will have obtained

the rights necessary for the exercise of all rights granted under this

Agreement, and you will be solely responsible for and will pay any

licensors or co-owners any royalties or other monies due to them

related to such Content;

o d. None of the following will violate any Law, contain any

defamatory material, or violate or infringe any intellectual property,

proprietary, or other rights of any person or entity (including

contractual rights, copyrights, trademarks, patents, trade dress,

trade secret, common law rights, rights of publicity, or privacy, or

moral rights): (i) the exercise of any rights granted under this

Agreement; (ii) any materials (including advertising) embodied in the

Content; (iii) the sale or distribution of the Content as authorized

in this Agreement; or (iv) any notices, instructions or advertising by

you for or in connection with any Apps;

o e. Your Content will not contain any viruses, spyware,

"Trojan horses," or other "malware" or harmful code, and will not

cause injury to any person or damage to any property; and

o f. You will include any attributions, copyright

information and other notices, terms and conditions that may be

required to be provided to end users (e.g., as part of Developer's

EULA) based on your use of third party "open source" software or other

third party intellectual property in any App. You will also promptly

make available to us, end users and any other third party that is

entitled to it, the source code corresponding to any App or portion

thereof if and in the manner required by applicable third party terms

and conditions (e.g., open source software licenses).

* 10. Indemnity. You will indemnify, defend and hold us

(including, and any respective officers, directors, employees,

contractors and assigns harmless from and against any loss, claim,

liability, damage, action or cause of action (including reasonable

attorneys' fees) that arises from any claim relating to any Content,

or from any breach of your representations, warranties or obligations

set forth in this Agreement (individually, a "Claim," and

collectively, the "Claims"). You will not consent to the entry of a

judgment or settle a Claim without our prior written consent, which

may not be unreasonably withheld. You will use counsel reasonably

satisfactory to us to defend each Claim. If we reasonably determine

that a Claim might adversely affect us, we may take control of the

defense at our expense (and without limiting your indemnification

obligations). Your obligations under this Section 10 are independent

of your other obligations under the Agreement.

* 11. Publicity and Confidentiality. You will: (a) protect

information made available by us that is identified as confidential or

that reasonably should be considered confidential; (b) use this

information only to fulfill your obligations under this Agreement; and

(c) either destroy or return all such information to us promptly when

the Agreement terminates (and, upon request, confirm such destruction

in writing). This paragraph covers all confidential information

regardless of when you receive it. Unless you have received our

express written permission, you will not use any trademark, service

mark, commercial symbol, or other proprietary right of ours, issue

press releases or other publicity relating to us or this Agreement, or

refer to us in promotional materials.

* 12. Disclaimers and Limitations of Liability. THIS PROGRAM AND

ANY APP STORE MATERIALS ARE PROVIDED "AS IS." WE WILL IN NO EVENT BE

LIABLE FOR ANY LOSS OF DATA OR CONTENT, LOSS OF PROFITS, COST OF COVER

OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR

RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR

ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND

REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT WILL OUR LIABILITY

HEREUNDER EXCEED THE AMOUNT OF FEES DUE AND PAYABLE TO DEVELOPER UNDER

THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM. WE

SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT

OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS

AGREEMENT OR THIS PROGRAM OR APP STORE MATERIALS, ALL WARRANTIES,

EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND

NON-INFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT WE CANNOT ENSURE THAT

CONTENT SUBMITTED BY OR ON BEHALF OF YOU WILL BE PROTECTED FROM THEFT

OR MISUSE, AND WE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY

SECURITY TECHNOLOGY OR PROCEDURE OR OF ANY END USER TO COMPLY WITH ANY

TERMS OF USE REGARDING THIS PROGRAM OR OTHERWISE.

* 13. Agreement Changes. We reserve the right to change this

Agreement at any time in our discretion. We will give you notice of

the changes by posting an updated version of this Agreement online or

by emailing you at an email address you have provided. Changes to the

program fees or payment of Royalties will be effective 30 days after

we post them or otherwise notify you of them. Any other changes to the

Agreement will be effective as of the date we post them or otherwise

notify you of them, unless we specify a different effective date when

we make a particular change. You are responsible for checking for

Agreement updates. Your continued participation in the program after

changes to this Agreement take effect will constitute your acceptance

of the changes. If you do not agree to a change, you must stop

participating in this program and terminate this Agreement.

* 14. General. This Agreement may not be amended except in writing

signed by both parties or as provided in Section 13 above. If any

provision of this Agreement is held invalid by a court with

jurisdiction over the parties to this Agreement, such provision will

be deemed to be restated to reflect as nearly as possible the original

intentions of the parties in accordance with applicable law, and the

remainder of this Agreement will remain in full force and effect. The

word "including" will be interpreted without limitation when used in

this Agreement. The parties to this Agreement are independent

contractors. Each party will bear its own costs and expenses in

performing this Agreement. We may use one or more subcontractors to

exercise our rights and perform our obligations hereunder. We will be

responsible for ensuring that our subcontractors comply with the

applicable portions of this Agreement when performing for us or on our

behalf. Our failure to enforce any provision of this Agreement will

not constitute a waiver of our rights to subsequently enforce the

provision. You may not assign any of your rights or obligations under

this Agreement, whether by operation of law or otherwise, without our

prior written consent, except that you may assign all of your rights

and obligations under this Agreement to any corporation or other

entity without consent in connection with a merger or the sale of all

or substantially all of your assets as long as you give us written