Microsoft has updated its applicaiton developer agreement for both windows and WP stores. Version: 6.0 | Effective date: April 10, 2014
Thank you for your interest in building apps for Windows and/or Windows Phone. This agreement describes the relationship between you and Microsoft Corporation (or the Microsoft subsidiary in the region where you live) and governs your use of the Windows Store, the Windows Phone Store, and/or the Developer Center.
By clicking to accept and/or by submitting an application or related materials to Microsoft, you represent and warrant to us that you have the authority to accept this Agreement, and you also agree to be bound by its terms. Throughout this Agreement, we refer to you as a developer, but we understand that in some cases, you may be a publisher submitting apps that you did not develop.
Terms and Conditions
In this Agreement, the following definitions apply:
a. “Account Fee” means the fee you pay to Microsoft to establish and access your Store Account.
b. “Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party. “Own” means more than 50% ownership or the right to direct the management of the entity.
c. “Application” or “App” means a Windows Phone application or Windows application.
d. “App Proceeds” means Net Receipts minus the Store Fee.
e. “Certification” means Microsoft’s process for testing the compliance of Apps with the applicable Certification Requirements. An App is “Certified” when (i) Microsoft (or Microsoft’s designated certification provider) confirms that the App has completed Certification and (ii) the App is packaged and signed for the Stores.
f. “Certification Requirements” means the technical, functional, content, and other policy requirements provided by Microsoft (at http://go.microsoft.com/fwlink/p/?LinkID=393472 for the Windows Store and http://go.microsoft.com/fwlink/?LinkID=183220 for the Windows Phone Store, or another location(s) specified by Microsoft) for Apps and In-App Products offered through the Stores.
g. “Commerce Expansion Adjustment” means an additional percentage of Net Receipts for an App or In-App Product which is retained by Microsoft for certain types of transactions in certain countries or regions, as specified on the Developer Center. The countries/regions and transaction types subject to the Commerce Expansion Adjustment are set forth at http://go.microsoft.com/fwlink/p/?linkid=248127. The Commerce Expansion Adjustment shall be thirteen and nine-tenths percent (13.9%) of Net Receipts for each App or In-App Product, which shall be added to the Store Fee for transactions subject to the Commerce Expansion Adjustment.
h. “Covered Parties” means, collectively, Microsoft, authorized resale partners pursuant to Exhibit C, and network operators that provide billing services for one or more of the Stores.
i. “Customer” means any end user customer of the Store who acquires an App or In-App Product, regardless of whether such Customer pays a fee to obtain the App or In-App Product.
j. “Desktop App” means any Application that runs on Windows, but which is built using APIs other than the APIs for Windows Store apps.
k. “Developer Center” or “Dev Center” means a website, currently available at http://msdn.microsoft.com/en-US/windows/, through which developers access information and receive communications from Microsoft relating to the Stores and can submit Apps for Certification and make Apps and In-App Products available in the Stores.
l. “Documentation” means the Developer Center and the Certification Requirements, and such other Store materials and information Microsoft makes available to developers from time to time.
m. “FOSS” or “Free and Open Source Software” means any software licensed under an Open Source Initiative Approved License, a list of which is currently available at http://opensource.org/licenses/alphabetical.
n. “In-App Product” means a supplementary digital item for an App which is offered for purchase in the Store(s); after an In-App Product is purchased by a Customer, it is delivered to the App by the developer.
o. “Marks” means, for each App, the name, trademarks, logos, icons, product descriptions, App titles, In-App Product names, and screenshots you provide to Microsoft for use in connection with the submission of your Apps or In-App Products for the Stores.
p. “Microsoft Mark” means the Windows Store logo, icon, and download badges described at http://go.microsoft.com/fwlink/p/?linkid=254841 and the Windows Phone Store logo, icon, and download badges described at http://msdn.microsoft.com/en-us/library/windowsphone/help/jj891134(v=vs.105).aspx.
q. “Microsoft Account” means the unique user name and password that identifies a customer of Microsoft services.
r. “Net Receipts” means the total amounts collected from Customers in connection with the download of an App or purchase of an In-App Product through the Store(s), (i) minus any sales, use, or VAT/GST taxes collected from Customers for remittance by Microsoft or a billing service provider as provided in Section 6.h or this Agreement; (ii) minus any amounts refunded to Customers or charged back by Microsoft or its billing service provider or other authorized partner; and (iii) amounts owed to Microsoft under this Agreement.
s. “Standard Application License Terms” or “SALT” means the sample Customer license agreement made available by Microsoft (at http://go.microsoft.com/fwlink/?LinkID=393652, or another location specified by Microsoft).
t. “Store” means the Windows Store and/or the Windows Phone Store, as applicable, or, collectively, the “Stores.”
u. “Store Account” means a service account for the Developer Center, which includes a user name and password.
v. “Store Fee” means the percentage of Net Receipts for an App or In-App Product which is retained by Microsoft as a fee for making the App or In-App Product available in the Store.
w. “Windows Store” and/or “Windows Phone Store” means a Microsoft-branded platform (which includes a client application and Internet-based service) provided by Microsoft, however named, through which Apps may be offered to or acquired by Customers.
x. “USD” means United States Dollar.
To submit Apps to the Stores, you must open a Store developer account through the Developer Center. Microsoft may verify information you submit when you set up your Store Account. You may be required to pay an Account Fee to submit your App for Certification. Microsoft may use the contact information you provide with your Store Account to send you newsletters and information regarding events, contests, promotions, and the like. Your Store Account is only for your use, and you are responsible for all activity that takes place with your Store Account. You may not share your user name and password or otherwise authorize any third party to access or use the Stores and/or Developer Center on your behalf. If you fail to keep your Store Account in good standing (for example, by failing to pay fees, if any, associated with the Store Account, by giving Microsoft incorrect or outdated information, by engaging in dishonest or fraudulent activity, or by repeatedly submitting Apps that violate this Agreement, abuse the Store service, or interfere with any other party’s use of the Store service) Microsoft may revoke your Store Account, remove your Apps from the Store(s), delete App ratings and reviews, retain associated Account Fees (if any), and pursue any other remedies available to Microsoft.
SUBMISSION, EVALUATION, CERTIFICATION, AND DISTRIBUTION OF APPS.
a. Submission. You must submit to Microsoft each App and the metadata for each In-App Product that you wish to make available through the Stores, including any updates to each App. You are solely responsible and liable for the App and In-App Products you submit. You are responsible for supporting your App and for delivering and supporting your In-App Products. Microsoft will retain (or destroy) all copies of the App and other materials you submit. It will not return them, so you must maintain your own backup copies.
b. Desktop App Submission. You may submit an App description for one or more Desktop Apps to the Windows Store. Notwithstanding anything else in this Agreement, you understand that Microsoft will not offer any Desktop Apps through the Windows Store and only Windows Store Apps are made available through the Windows Store. Microsoft may, but is not required to, list the Desktop App in the Windows Store together with a link you provide, to a website where users can acquire the App. You are solely responsible and agree to maintain that website and provide an updated link to Microsoft if the url changes.
c. Updates to Apps. You may submit updates to Apps for Certification and distribution through the Stores. Those updates are subject to all of the requirements of this Agreement. You understand that end users may elect to receive updates automatically. You may not add any new functionality to your App via an update which requires written consent from the Customer without first providing notice to the Customer and obtaining any consents as may be required by law in the markets where you choose to distribute your App.
d. Evaluation and Testing.
i. For Windows Store. You may use the Windows App Certification Kit to test your App on a Windows 8, Windows RT or successor device.
ii. For Windows Phone Store. If Microsoft offers a “device unlock” service, however named, through the Developer Center, you may use such service to unlock a reasonable numbers of Windows Phone devices, in accordance with any specifications and technical limitations of the service, solely for the purpose of using such unlocked Windows Phone devices to test and evaluate your Windows Phone Apps and/or In-App Products. For purposes of this section, “unlock” means to enable the Windows Phone device to load and run Apps and/or In-App Products that are being developed for the Windows Phone Store.
e. Initial Certification. Microsoft will test each App (including any updates) you submit for compliance with this Agreement (which includes the applicable Certification Requirements) and other policies made available to you (if any). Microsoft will not make any App available in the Stores unless and until the App is packaged and signed by Microsoft.
f. Content. You are solely responsible for selecting all content made available through your App(s) and In-App Product(s), including your Marks.
g. Responding to Claims. If Microsoft receives a claim from a third party requesting that your App be changed or removed, Microsoft may refer that claim to you. You must comply with the notice as soon as reasonably practicable, together with any other requirements in Microsoft’s Notice and Takedown policies at http://go.microsoft.com/fwlink/p/?LinkId=224390. If you discover that your App violates the terms of this Agreement, you must immediately notify Microsoft and work with Microsoft to repair the App.
h. Making a Claim. If you believe another App violates your rights, you may submit a claim to Microsoft in accordance with Microsoft’s Notice and Takedown policies.
i. App Availability. Microsoft has no obligation to make any App or In-App Product available that you submit, even if that App has been Certified.
j. App Placement and Promotion. Microsoft reserves the right, in its sole discretion, to make (or to designate third parties to make) all decisions regarding placement or promotion of Apps in the Stores.
k. Enterprise Apps. If you provide any Enterprise App(s) for Windows Phone to your Employees (both as defined in Exhibit B), you are subject to and agree to the terms set forth in Exhibit B to this Agreement.
l. Removal Policies. Microsoft reserves the right to remove or suspend the availability of any App or In-App Product from the Stores for any reason or no reason. Reasons may include, without limitation, (i) your breach of the terms of this Agreement or the Documentation; (ii) your express termination of this Agreement or of the license grants associated with an App or In-App Product; (iii) an assertion or claim that your App or In-App Product infringes the intellectual property rights of a third party; (iv) an assertion by a mobile network operator that your App or In-App Product causes harm to the operator’s network; (v) an assertion by a mobile network operator that your App is already provided under an agreement between you and a mobile operator or (vi) complaint(s) about the content or quality of your App or In-App Product. Microsoft also may disable previously downloaded copies of an App if Microsoft believes that the App could cause harm to end users or their devices, third parties (including any Covered Party) or any network, or to comply with any judicial process, government order or lawsuit settlement. Unless your App or In-App Product is removed or disabled for breach of this Agreement or in response to an infringement allegation (in which case Section 11.b will apply), Microsoft will pay to you the amounts owed, if any, in connection with the distribution of your App or In-App Product before removal or disablement.
m. Modification or Discontinuance. The Stores are the property of Microsoft. Microsoft may, in its sole discretion, change or discontinue one or both of the Stores at any time.
APPOINTMENT AS AGENT OR COMMISSIONAIRE; LICENSES.
a. Appointment of Microsoft. The Stores are a forum through which Apps and In-App Products are made available by developers to Windows and Windows Phone users. Microsoft’s role is to provide the technology and services to enable this forum, and to process the related purchases, returns and chargebacks for you. Except as otherwise provided in Exhibit C to this Agreement, you appoint Microsoft to act as your agent or commissionaire, as applicable, for these purposes and you acknowledge that you, not Microsoft, are the distributor of the App and/or In-App Product. If your Windows Store App is designated as preinstallable by an OEM or other channel partner, or “channel exclusive”, you authorize us to make your Windows Store App available to the designated OEM or channel partner on your behalf. If your Windows Phone App is designated as pre-installable by an OEM or mobile operator, you will have the ability to provide the Windows Phone App (as formatted and signed by Microsoft) to the designated OEM or mobile operator in accordance with the applicable Documentation and pursuant to an appropriate agreement between you and the designated OEM or mobile operator.
b. Grant of Rights to Microsoft. You do not transfer ownership of any App to Microsoft by submitting it, but you do grant to Microsoft, in its capacity as your agent or commissionaire, the worldwide right to: host, install, use, reproduce, format, make available to customers (including through multiple tiers of distribution), insert third party ad controls selected by you via the Dev Center, and sign the App (including by removing preexisting signatures) all for purposes of exercising Microsoft’s rights and responsibilities under this Agreement, including performing Certification of your App and conducting penetration or other testing for identification of security vulnerabilities. Microsoft may also evaluate your App periodically after it becomes available in the Stores, to verify that it continues to comply with this Agreement and remains compatible with Windows and/or Windows Phone. You also grant Microsoft the worldwide, royalty-free right to publicly perform and display, duplicate and demonstrate your App, pieces of your App, or associated Marks and materials, at trade shows and industry events, and to advertise or promote your App in any and all media.
c. Removing an App Listing. If you use the functionality in the Dev Center to request that Microsoft remove your App or In-App Product from availability in the Stores (which function may be referred to as the “unpublish” functionality or otherwise), within a reasonable period of time Microsoft will remove the affected App or In-App Product from the Stores and cease making the affected App or In-App Product available, except as permitted under Section 11.b of this agreement.
d. Product Ratings. The Stores allow users to comment on and rate Apps. Microsoft may use those ratings and other data to determine the placement or marketing of Apps in the Stores. Your Apps may be subject to user ratings with which you may not agree. You may not attempt to manipulate ratings for your App or any other App. You may contact Microsoft if you have any questions or concerns regarding these ratings.
e. Right to Use Marks. You grant Microsoft, its agents, licensees and affiliates the right to use, reproduce, display, publicly perform and publish your entity name, App or portion of your App, In-App Product and the Marks for each App, and to modify your App description solely to correct obvious spelling, grammatical or typographical errors, in connection with the distribution and marketing of the App or In-App Product through the Stores and in any marketing campaigns, presentations and press releases for the App, In-App Product, the Windows and/or Windows Phone operating system(s), and/or Stores that Microsoft may elect to engage in.
h. License to Microsoft Marks. Effective as of the day Microsoft makes your App available for download in the Stores, and for so long as your App continues to be made available in the Stores, Microsoft grants you a worldwide, nonexclusive, nontransferable, royalty-free license to use the Microsoft Marks in connection with advertising for your App, solely as described at the logo use specifications posted at: http://go.microsoft.com/fwlink/?LinkId=254841 and http://msdn.microsoft.com/en-us/library/windowsphone/help/jj891134(v=vs.105).aspx. Microsoft may change these URLs, but if it does, Microsoft will use reasonable means to redirect you to any new URLs where these specifications are posted. Microsoft may, with reasonable notice to you, change the specifications to include new Microsoft Marks. Microsoft reserves all rights not expressly granted herein. You may not: (i) use the Microsoft Marks in a way that may cause confusion about ownership of the Microsoft Marks or whether the App is a Microsoft product, (ii) do or say anything that implies affiliation with, or sponsorship, endorsement or approval by Microsoft other than as contemplated by this Agreement, (iii) use the Microsoft Marks in a way that implies that non-licensed products meet Microsoft’s Certification Requirements, (iv) register, adopt or use any name, trademark, domain name or other designation that includes or violates Microsoft’s rights in the Microsoft Marks or any Microsoft trademark in the Microsoft Marks, (v) use the Microsoft Marks in a way that would damage Microsoft’s reputation or goodwill in the Microsoft Marks, (vi) alter, animate or distort the Microsoft Marks or combine it with any other symbols, words, images or designs. When you include a trademark footnote in your materials to give notice of your own trademarks or other third party trademarks, you must add the following wording to your trademark footnote: “All other trademarks are the property of their respective owners.” Microsoft is the sole owner of the Microsoft Marks and associated goodwill, and the sole beneficiary of the goodwill associated with your use of the Microsoft Marks. You will not acquire any right, title or interest in the Microsoft Marks because of your use of the Microsoft Marks. You hereby assign and will assign in the future any rights you may acquire in the Microsoft Marks as a result of your use of the Microsoft Marks under this license, along with the associated goodwill. You will reasonably assist Microsoft at Microsoft’s expense in protecting the Microsoft Marks. Microsoft will determine, in its sole discretion, whether to take legal action to enforce or defend its rights in the Microsoft Marks and will control any legal action concerning the Microsoft Marks.
Each App you submit to Microsoft for distribution through the Stores must meet the following requirements:
a. Certification Requirements. The App and In-App Product, including any App or In-App Product that contains FOSS, must comply with this Agreement, the Certification Requirements and any other materials provided to you by Microsoft, as any of these may be revised from time to time.
b. Local Law. The App or In-App Product and your marketing of the App or In-App Product must comply with the laws of each territory or country into which you request distribution of the App. This includes: (i) data protection, privacy and other laws and regulations relating to collection and use of user information by your App, (ii) telecommunications laws, (iii) content ratings regulations, and (iv) export control laws. If you are required to make any disclosures to consumers prior to sale or download of the App, you must provide those in the App description field. Those may include your full contact information, notice that an App supports in-app purchase, or other disclosures. You must make such notices sufficiently prominent as is required by local law. Your App must not require further export, import or technology control licensing from any government. You must disclose to Microsoft any controlled technology employed, used or supported by your App. You may not use the Stores or any services or tools made available for the development of apps for any illegal activity.
c. Third Party Rights. Your App, including any App that contains FOSS, must not infringe or misappropriate any intellectual property or personal right of any third party. You are, and will continue to be, at your sole cost and expense, responsible for securing, reporting, and maintaining all necessary rights, clearances and consents and paying all licensing fees (including but not limited to applicable public performance license fees to music publishers and/or performance rights and other sums, costs, and/or considerations associated with providing music or video (and all content embodied therein) in and through your App or In-App Product, and for undertaking all associated reporting obligations related thereto. If your App includes FOSS, you must comply with all applicable FOSS licensing terms, including any source availability requirements.
d. FOSS Software. If your App includes FOSS, (i) you are responsible for compliance with all applicable FOSS license terms, including any source code availability requirements, and (ii) it must not cause any non-FOSS Microsoft software to become subject to the terms of any FOSS license.
e. In-App Commerce. You may elect to support purchasing options from within your App. You are not required to use Microsoft’s commerce engine to support those purchases, but any In-App Purchase functionality that you offer must comply with the Certification Requirements. If you choose to use Microsoft’s In-App Purchase commerce engine, purchases will be subject to the terms of this Agreement, including without limitation the Store Fee, Application Requirements (including the Certification Requirements for In-App Purchases), and licensing and roaming requirements. If your App allows any purchasing from within the App, through Microsoft’s commerce engine or otherwise, you must prominently disclose in your product description that In-App Purchase functionality is available. If your App uses a non-Microsoft commerce engine, you must disclose that information in the product description.
APP PRICING, PAYMENTS, TRANSACTIONS AND TAXES.
a. App Pricing. When you submit an App or In-App Product, you will designate the price (if any) to be charged to customers by selecting one of the App price points that are consistent with the App price points specified by Microsoft in the Documentation for the applicable geography, and Microsoft will charge Customers that price (or its reasonable equivalent in local currency) for the license to your App or In-App Product as acquired through the Store(s).
b. Store Fees. The Store Fee you owe to Microsoft for making your Apps and In-App Products available through the Store will be deducted from payments made to you in accordance with this Section 6.
i. For the Windows Store. The Store Fee for Apps made available in the Windows Store is thirty percent (30%) of Net Receipts, unless and until your App takes in total Net Receipts of USD$25,000, after which time the percentage is 20% for that App. The twenty-percent (20%) Store Fee will be in effect until December 31, 2014. Beginning January 1, 2015, the Store Fee for all Apps made available in the Windows Store will be thirty percent (30%) of Net Receipts.
ii. For the Windows Phone Store. The Store Fee for Apps made available in the Windows Phone Store is thirty percent (30%) of Net Receipts, except for transactions subject to the Commerce Expansion Adjustment, for which the Store Fee shall be forty-three and nine-tenths percent (43.9%) of Net Receipts.
c. Payment Terms. Microsoft will pay you applicable App Proceeds, if any, as full compensation for your App as made available to Customers from the Store(s). Payments generally occur on a monthly basis, if they meet the following applicable thresholds:
i. For the Windows Store. If Net Receipts are less than US$200 (or its equivalent in local currency), then Microsoft may elect to carry forward the amount owed to subsequent months until the total amount owed is at least USD$200 (or its equivalent in local currency).
ii. For the Windows Phone Store. If App Proceeds are less than US$200 (or its equivalent in local currency), then Microsoft may elect to carry forward the amount owed to subsequent months until the total amount owed is at least USD$200 (or its equivalent in local currency).
d. Payment Processing. Microsoft will pay you the App Proceeds in accordance with Microsoft’s then-current payment policies and in the manner you indicated during the Store Account setup. Microsoft is not responsible for delay, loss or misapplication of payment because of incorrect or incomplete information supplied by you or a bank or for failure of a bank to credit your account. If you are outside of the United States of America, Microsoft may remit payment to you in the local currency of your address for payment, using Microsoft’s then current rates for converting USD into or from your local currency. The amount you actually receive will depend in part on the rates and fees imposed by your financial institution and on any applicable tax withholding requirements, and the amount you receive will be inclusive of any sales, use, or value-added taxes that may be chargeable between you and Microsoft. You must provide Microsoft (or its third party payment processor) with all financial, tax and banking information requested so Microsoft can pay you under this agreement. Microsoft will notify you of any changes to the required information via updates to the Documentation. Your failure to keep such information current and accurate may result in Microsoft’s removal of your App or In-App Product from the Store and forfeiture of amounts owed to you under this Agreement. A Customer will be deemed to have paid in full for your App when Microsoft receives payment from the Customer, and any failure by Microsoft to remit the amounts owing to you will not affect a Customer’s rights to the App.
e. Retaining Costs. If Microsoft removes your App or In-App Product from the Store(s) and/or any Customer’s device(s) for breach of this Agreement or in response to an allegation of intellectual property infringement, Microsoft may deduct any costs incurred in connection with the removal of such App or In-App Product from any App Proceeds. If Microsoft terminates or suspends your Store Account for breach of this Agreement, Microsoft will deduct any costs incurred in connection with closing or suspending your Store Account from any App Proceeds otherwise payable to you and may retain App Proceeds if appropriate under the circumstances.
f. Taxes on Payments. You are responsible for your own taxes, including taxes unique to where you reside, that are related to payments you may receive under this agreement. You are also responsible for paying any sales, use, or value-added taxes (if any) in connection with the Store Fee that Microsoft collects from you. If taxes are required to be withheld on any amounts to be paid by Microsoft to you, Microsoft will deduct such taxes from the amount owed and pay them to the appropriate taxing authority and will secure and deliver to you an official receipt for any such taxes withheld. Microsoft will use reasonable efforts to minimize such taxes to the extent permissible under applicable law, and each party will reasonably cooperate with the other to obtain the lowest tax rates or elimination of such taxes pursuant to the applicable income tax treaties.
g. Reconciliation and Offset. You are responsible for all costs and expenses for returns and chargebacks of your App or In-App Products, including the full refund and chargeback amounts paid or credited to customers. Refunds and/or chargebacks processed after you receive the App Proceeds will be debited against your account. Microsoft may offset any amounts owed to Microsoft (including the refund and chargeback costs described in this paragraph) against amounts Microsoft owes you.
h. Taxes on App Transactions. Microsoft (or its billing service provider or other authorized partner) will collect and remit sales, use, goods and services, value added or similar taxes, if any, applicable to Customers’ acquisition of your App and In-App Product through the Stores only in the country(s) and to the extent described in the attached Exhibit A and Exhibit C, as may be revised from time to time. Except as otherwise provided in Exhibit A and Exhibit C, Microsoft will not remit any sales, use, goods and services, value added or other similar tax in connection with Customers’ acquisition of your App or In-App Product. You are responsible for reviewing Exhibit A and Exhibit C in light of your circumstances and determining whether you have an obligation to register, collect, and remit taxes in any country in which you elect to have Microsoft make your App or In-App Product available to Customers and for complying with any such tax obligations that apply to you. You are also responsible for appropriately identifying the content type for your In-App Products in Dev Center.
You represent, warrant and undertake to Microsoft that:
a. You have the power and authority to enter into this Agreement and to fully perform your obligations under this Agreement;
b. Your App and In-App Product, together with all advertising or other materials accessible from or that provide access to your App, complies with and will continue to comply with all requirements of this Agreement, including the Certification Requirements;
c. You are at least 18 years of age (or the age of full legal capacity in your location) on the date you submit your App to Microsoft;
d. Listing and distribution of your App or In-App Product in the Store(s) does not and will not violate any agreements to which you are a party or of which you are otherwise aware. You have obtained any and all consents, approvals or licenses (including written consents of third parties where applicable) required for you to make your App or In-App Product available in the Store(s) and for your App to access any Internet-based services, if any, to which the App enables access;
e. Microsoft’s exercise of the rights you grant under this Agreement will not obligate Microsoft or its subsidiaries to pay any third party any amounts; and
f. The information you provide to Microsoft under or in connection with this Agreement is true, accurate, current, and complete.
During the term of this Agreement and for five (5) years after, the recipient of Confidential Information under this Agreement will hold in confidence, and will not use or disclose any of the other party’s Confidential Information to a third party, except contractors who are performing on the receiving party’s behalf and only subject to confidentiality terms at least as protective as this section. “Confidential Information” means all information that a party designates as confidential, or a reasonable person knows or reasonably should understand to be confidential. If Microsoft exposes you to any customer personal information, then between you and Microsoft, that personal information is Microsoft Confidential Information and you will return to Microsoft, or destroy that information, immediately upon Microsoft’s request. Confidential Information does not include information that is or becomes known to the receiving party without a breach of this agreement or any other confidentiality obligation owed to a disclosing party. If you have any questions as to what comprises Microsoft Confidential Information, you will consult with Microsoft. This section does not prohibit either party from responding to lawful requests from law enforcement authorities.
ACCESS TO TRANSACTION DATA.
Even though Microsoft is your agent or commissionaire as described in Section 4.a, Microsoft will not provide you access to any personal information submitted by customers through the Stores, including transaction data. You waive, release and disclaim any claim or right you may have to request access to such information. Microsoft’s only reporting obligation to you is to provide you the reporting capabilities we are required to provide under applicable tax laws and regulations. The reporting available to you through the Developer Center will provide aggregate information relating to your App downloads and App and In-App Product transactions and Microsoft’s payments to you under this Agreement.
DISCLAIMER, LIMITATION OF LIABILITY, AND DEFENSE OF CLAIMS.
a. DISCLAIMER OF WARRANTY. WE PROVIDE THE STORES AND DEVELOPER CENTER “AS-IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” YOU BEAR THE RISK OF USING THE STORES AND DEVELOPER CENTER. TO THE EXTENT PERMITTED BY LOCAL LAW, MICROSOFT EXCLUDES ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT, RELATING TO THE STORES AND DEVELOPER CENTER. WITHOUT LIMITING THE FOREGOING, COVERED PARTIES EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO, OR USE OF, THE STORES OR THE DEVELOPER CENTER WILL BE UNINTERRUPTED OR ERROR FREE.
b. LIMITATION OF LIABILITY. YOU CAN RECOVER FROM MICROSOFT AND ITS AFFILIATES ONLY DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO YOUR ACCOUNT FEE (OR $1, IF THERE IS NO ACCOUNT FEE). YOU AGREE NOT TO SEEK AND WAIVE ANY RIGHT TO RECOVER ANY OTHER LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES FROM ANY COVERED PARTY. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF THE COVERED PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES. THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU BECAUSE YOUR STATE OR COUNTRY MAY NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES.
c. Duty to defend. You will defend, indemnify and hold harmless each Covered Party, as applicable, from and against (including by paying associated any costs, losses, damages or expenses and attorneys’ fees) any and all third party claims: (i) alleging that your App infringes any proprietary or personal right of a third party; (ii) arising from a failure of your App or In-App Product to comply with any of the Application Requirements; (iii) alleging your breach of this agreement, (iv) relating to the use of or inability to use the App or In-App Product, including any product liability claims; or (v) by any tax authority based on any nonpayment or underpayment of any sales, use, goods and services, value added or other similar tax, including any associated penalties and interest, which you are obligated to pay. Covered Party will (A) notify you promptly in writing of the claim; provided, however, a Covered Party’s failure to notify you shall not relieve you of any liability that you may have, except to the extent that such failure materially prejudices your legal rights; and, (B) at your reasonable request, provide you with reasonable assistance in defending the claim. You will reimburse Covered Party for any reasonable out-of-pocket expenses incurred in providing that assistance. You will not make any settlement or compromise of a claim, or admit or stipulate any fault or liability on a Covered Party with respect to any claim covered by this section without such Covered Party’s express, prior written consent.
d. Covered Parties who are not party to this Agreement are beneficiaries of this Agreement solely for the purpose of enforcing the rights granted to such Covered Parties in this Section 10.
TERM AND TERMINATION.
a. General. This Agreement will remain in effect until terminated. You or Microsoft may terminate this Agreement at any time for any reason or no reason, upon at least sixty (60) days’ written notice. Either party may terminate this Agreement in the event of an uncured material breach of this Agreement by the other party which termination will be effective thirty (30) days after the other party’s receipt of written notice of the breach.
b. App Retention. If you or Microsoft terminate this Agreement or request that Microsoft remove your App from the Store(s), Microsoft may retain a copy of the affected App(s), indefinitely. Unless the App was removed from the Store(s) because of a court order relating to intellectual property infringement, you grant to Microsoft a perpetual license to reproduce and provide the App(s) to Customers who previously downloaded the App(s) under the terms of the Customer’s existing license, or for storage management, backup and restore, or technical reasons.
i. All notices that you provide to Microsoft under this agreement must be sent to the following email alias: email@example.com.
ii. You will identify an individual to serve as the primary developer contact under this Agreement. This primary developer contact will be the default administrator for this Agreement, and will receive all notices unless you change the primary developer contact information by visiting the Dev Center.
b. Microsoft may disclose your contact information as necessary for Microsoft to administer this Agreement through its Affiliates and other parties that help Microsoft administer this Agreement.
c. Assignment. Microsoft may assign this Agreement (or any rights or duties under it) at any time. You may not assign this Agreement or any rights or duties under it without the express written consent of Microsoft, except that you may assign this Agreement without Microsoft’s consent (i) to your Affiliate or (ii) in connection with the sale of all or substantially all of your assets. If you assign this Agreement as permitted in this Section 12.c, you agree (A) to provide prompt notice of such assignment to Microsoft and (B) if the assignee does not already have a Store Account, such assignee shall open a Store Account in accordance with Section 2 of this Agreement within fourteen (14) days after the date of a permitted assignment under this Section 12.c.
d. Subcontractors. Microsoft may sublicense its rights under this Agreement to third parties or otherwise authorize third parties to assist Microsoft in performing its obligations or exercising its rights under this Agreement. Microsoft will, subject to the terms of this Agreement, be responsible for the performance of such third parties.
e. English Language. The parties intend for this Agreement to be written and interpreted solely in English. Any notices required or provided under this Agreement will be in English. In the event of any conflict between the English version of this Agreement or any notices and a translation, the English version will prevail.
f. Choice of Law and Venue. This Agreement is governed by the laws of the state of Washington, USA, which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles. You irrevocably consent to the exclusive jurisdiction and venue of the courts in King County, Washington.
g. Limitation on Claims. To the maximum extent permitted by local law, any claim related to this Agreement or to the Stores must be filed within one year of the claimant first becoming aware of the claim. If it is not filed within that time, then the claim is permanently barred. This applies to you and your successors and to Microsoft and our successors and assigns.
h. No Waiver. A party’s failure to enforce any rights under this Agreement will not be deemed a waiver of the same right on another occasion, or of the right to enforce any other right under this Agreement. Microsoft’s decision to make an App available in the Stores will not be deemed a waiver of any rights Microsoft may have under this Agreement, including for violations of the Certification Requirements or other content related terms.
i. Survival. Sections of this Agreement that, by their terms, require performance after the termination or expiration of this Agreement will survive.
j. Not Exclusive. This Agreement is nonexclusive, and nothing in this Agreement restricts you or Microsoft from entering into other, similar agreements with other marketplaces or app developers, or from acquiring, licensing, developing, manufacturing, or distributing similar or competing technologies.
k. Updates. Microsoft may update this Agreement at any time in its sole discretion. Microsoft will indicate the last date on which the Agreement was modified at the top of the Agreement. By submitting an App and/or any related materials under this Agreement, you agree to be bound by the terms and conditions contained in the Agreement then in effect on the date of submission. Those terms will apply to Apps that you submit on and after that date, until the terms are updated again. If you do not agree with an update, you have no right to, and must not, submit an App or any related materials.
EXHIBIT A: TAXES ON APPLICATION TRANSACTIONS
Microsoft Tax Remittance Countries:
Microsoft (or its billing service provider) will collect and remit sales, use, goods and services, value added or similar taxes, if any, applicable to Customers’ acquisition of your App(s) and/or In-App Product(s) through the Store(s) in the following countries:
◦All current member countries of the European Union
•Other Microsoft Tax Remittance Countries:
Mixed Remittance Countries:
Certain Microsoft billing partners may collect and remit sales, use, goods and services, value added or similar taxes, if any, applicable to Customers’ acquisition of your App(s) or In-App Product(s) through the Windows Phone Store in the country(s) listed on the Developer Center at http://go.microsoft.com/fwlink/?LinkID=271132. The reports that Microsoft makes available to you will identify the transactions for which a billing partner has collected sales, use, goods and services, value added or similar taxes applicable to Customers’ acquisition of your App(s) or In-App Product(s) through the Windows Phone Store. Except for the transactions described in such reporting, neither Microsoft nor its billing services providers will remit any sales, use, goods and services, value added or other similar tax in connection with Customers’ acquisition of your App(s) or In-App Product(s) in these country(s). You are responsible for reviewing the reporting provided to you and determining and complying with your obligations, if any, to register, collect, and remit taxes in connection with transactions involving your App(s) or In-App Product(s).
EXHIBIT B: TERMS AND CONDITIONS FOR ENTERPRISE APPLICATIONS
Last Updated: April 10, 2014
This Enterprise Application Addendum (the “Addendum”) is a supplement to the terms and conditions of the App Developer Agreement; Windows Store and Windows Phone Store. This Addendum applies if you choose to make available Enterprise Applications to Employees as described in this Addendum. Except as expressly modified by this Exhibit B, all of the terms and conditions in the App Developer Agreement, which is incorporated by reference herein, apply to the offering and distribution of your Enterprise Applications. Except where expressly modified by this Addendum, the terms and conditions that apply to Applications in the App Developer Agreement will apply to Enterprise Applications as defined in this Addendum.
1. Definitions. Capitalized terms not otherwise defined herein will have the meanings provided in the App Developer Agreement.
a. “App Developer Agreement” means the agreement between you and Microsoft Corporation and its Affiliates relating to your use of the Windows Store, the Windows Phone Store, and the Developer Center. The current version of the App Developer Agreement can be found at http://go.microsoft.com/fwlink/?LinkID=221922.
b. “Certificate Software” means the digital certificate obtained from Symantec (or other Microsoft designee) that allows you to provide an Enterprise Application for internal distribution to Employees in accordance with the terms of this Addendum.
c. “Employee(s)” means a person who is hired by an employer for a wage or salary in exchange for services rendered to the employer, contractors, and employees of a third-party temporary agency that are assigned by the agency (pursuant to a temporary agency agreement) to complete assignments for you. If you are an educational institution, the term “Employee” also includes faculty, staff and students of your institution and if you are a hospital, the term “Employee” includes credentialed physicians, referring physicians and clinicians working at the hospital.
d. “Enterprise Account” means a business account established with Microsoft for the purpose of obtaining the Certificate Software from Symantec (or other Microsoft designee) and making available Enterprise Applications to Employees.
e. “Enterprise Application” or “Enterprise App” means a Windows Phone App and any bug fixes, updates, or other modifications thereto that includes the Certificate Software and is made available in accordance with the terms of this Addendum and the App Developer Agreement.
2. Enterprise License Use and Restrictions.
a. Internal Distribution. Subject to the terms of this Addendum and the App Developer Agreement, you may make Enterprise Applications internally available to your Employees. Enterprise Applications may not be made available to consumers, other companies or the general public, except for vendors or companies that are under contract with you to develop or test any Enterprise Applications. You are responsible for any unauthorized distribution of the Certificate Software and Enterprise Applications outside of the terms and conditions of this Addendum.
b. No Alternative Marketplace. You will not use the Certificate Software to: (i) make paid Applications that are offered in the general Store available to your Employees; and (ii) make available Enterprise Applications in a manner that harms the Store as determined by Microsoft.
c. Compliance with Requirements. Enterprise Applications must comply with the Certification Requirements and all other terms of the App Developer Agreement except as expressly modified by this Addendum.
d. Compliance with Applicable Laws. You represent and warrant that Enterprise Applications comply with all laws and regulations and fulfill all applicable regulatory and licensing requirements. You will not take any action or seek any permission that would cause any Microsoft product to be deemed a regulated product or to become subject to regulation (such as by the U.S. Food and Drug Administration) or that would impose any additional obligations or limitations on Microsoft.
e. Collection of Employee Data. You are responsible for complying with all applicable privacy and data protection laws with respect to the collection, use or disclosure of any user or device data by you or your Enterprise Application, including providing notice and obtaining employee consent for such collection, use or disclosure of user or device data.
f. Use of Location API. If your Enterprise Application uses the Location API, you will comply with the applicable Certification Requirement for use of the Location API. Additionally, you will include a notification to inform end users of an Enterprise Application’s use of location information, and the notification will include a statement substantially similar to the following: “Microsoft and its trusted location partners also receive info that is used to improve positioning services, such as nearby Wi-Fi access points and cell towers, when the location features of this application are used.”
3. Creation of Enterprise Account and Fees. You are responsible for creating an Enterprise Account and paying all applicable fees to Symantec (or other Microsoft designee) in order to access the Certificate Software and make available Enterprise Applications under the terms of this Addendum and the App Developer Agreement.
4. No Application Submission. Notwithstanding Sections 3.a, 3.e, 3.i, 3j, and Section 4.a of the App Developer Agreement, you are not required to submit your Enterprise Applications to Microsoft and Microsoft is not appointed as your agent or commissionaire, as applicable, for making your Enterprise Applications available to others in accordance with this Addendum. Microsoft does not retain any copies of Enterprise Applications and Enterprise Applications are not made available in the Windows Phone Store. You are solely responsible and liable for the Enterprise Applications you distribute.
5. Termination. If you breach the terms of this Addendum and/or the App Developer Agreement, Microsoft may (a) revoke the certificates provided by Certificate Software; and/or (b) terminate your Enterprise Account immediately.
6. Indemnification. You will defend, indemnify and hold harmless each Covered Party, as applicable, from and against any and all claims made or brought by an unaffiliated third party or Employee, and costs losses, damages and expenses (including reasonable attorneys’ fees) relating thereto: (a) alleging that your Enterprise Application infringes copyright, trademark, or patent rights, or misappropriates trade secrets or undisclosed information, (b) arising from a failure of your Enterprise Application to comply with the Application Requirements; (c) relating to use or inability to use your Enterprise Application, including any product liability claims; and (d) arising from any breach of this Addendum or the warranties in the App Developer Agreement. Your obligations in this Section 6 are subject to the conditions outlined in Section 10.c (Duty to Defend) of the App Developer Agreement. Covered Parties who are not party to the App Developer Agreement are beneficiaries of the App Developer Agreement solely for the purpose of enforcing the rights granted to such Covered Parties in this Section 6 of the Addendum.
EXHIBIT C: TERMS AND CONDITIONS FOR RESELLER COUNTRIES–WINDOWS PHONE STORE
In the country(s) and to the extent listed below, Microsoft acts as a reseller, rather than your agent, in making your App(s) and In-App Product(s) available in the Windows Phone Store:
•China (except on mobile communications devices running a version of Windows Phone 7 OS)
If you choose to make any App(s) or In-App Product(s) available in the Windows Phone Store in any country listed above, you agree to the following modified and additional terms and conditions solely in connection with the offering and distribution of your App(s) and In-App Product(s) in such country(s) as provided above. Except as expressly provided in this Exhibit C, all of the terms and conditions in the Agreement apply to the offering and distribution of your App(s) in such country(s).
1. License Grants. Notwithstanding the third sentence of Section 4.a and the first sentence of Section 4.b of the Agreement, for the country(s) listed in this Exhibit C in which you choose to make your App or In-App Product available, you grant to Microsoft a license (including the right to sublicense to authorized resale partners in Microsoft’s sole discretion) to make the App or In-App Product available to Customers and to provide the App through the Windows Phone Store. You do not transfer ownership of any App to Microsoft by submitting it, but you do grant to Microsoft a license (including the right to sublicense to authorized resale partners in Microsoft’s sole discretion), for the country(s) listed in this Exhibit C in which you choose to make your App available, (a) to host, install, use, reproduce, format, insert third party ad controls (selected by you via the Dev Center), and sign your App(s) (including by removing preexisting signatures) for purposes of performing Certification (by Microsoft or Microsoft’s designated certification provider) and testing App compatibility and to install and use your In-App Product(s) for purposes of testing compliance of the In-App Product(s) with the Certification Requirements and (b) directly or indirectly through authorized partners (including pursuant to a sublicense agreement), to host, reproduce, market, promote, offer, and provide your App(s) to Customers and to market, promote, offer, and make available your In-App Product(s) to Purchasers. You will continue to license your App(s) and to license and deliver your In-App Product(s) to Customers as provided in Section 4.g of the Agreement.
2. Application Pricing; Taxes on Applications. Notwithstanding Section 6 of the Agreement, when you submit an App and choose to make the App or an In-App Product available as provided in this Exhibit C, you may suggest the price (if any) to be charged to Customers (consistent with the price points specified by Microsoft in the Documentation) in that country, and Microsoft may charge that price (or another price that Microsoft or an authorized partner chooses in its discretion) in making your App or In-App Product available in the Windows Phone Store in that country. For any App or In-App Product you choose to make available as provided in this Exhibit C, Microsoft (or an authorized partner or billing service provider) will collect and remit sales, use, goods and services, value added or similar taxes, if any, applicable to the Purchaser’s acquisition of your App or In-App Product in such country(s) through the Windows Phone Store as provided in this Exhibit C. Except as provided herein, Microsoft will not remit any sales, use, goods and services, value added or other similar tax in connection with Customers’ acquisition of your App(s) or In-App Product(s).
3. Payment Terms and Fees. App Proceeds payable to you in connection with the sale of your App or In-App Product in the country(s) listed in this Exhibit C will be calculated and paid to you as provided in Section 6.c, but the App Proceeds will be provided to you as a royalty payment in exchange for the license granted in paragraph 1 of this Exhibit C.