Leaked Distribution Agreement all but Confirms Amazon’s Android App Store

Rumors of an Android app store run by Amazon have caused quite a stir, but they have remained merely rumors. But now a leaked Distribution Agreement for the supposed Amazon app store is lending a whole dose of truth to the whispering. It still remains to be seen when we will hear of a formal announcement regarding the marketplace, and there is still a chance that the terms described don’t necessarily relate to what everyone is thinking or are a clever fake, but all of that seems unlikely given the terms laid out.

As part of the agreement developers will earn the greater amount between 70 percent of the purchase price or 20 percent of the list price. There is also a $99 yearly fee being associated with the market rumor and a stipulation that Amazon would be able to modify application code to include their own DRM protection methods.

Amazon is also entitled to a free copy of the app for use in re-distributing software to purchasers who want to re-download purchased items. The free copy is retained for distribution even if and after the actual app is pulled from the market.

It would be hard to deny the Amazon app store in the face of this info, and perhaps it will be the healthy shot in the arm Android needs to improve the distribution of applications on the platform. If you like long-winded legal jargon feel free to peruse the full agreement below.

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

[via TalkAndroid]