V2.0 App Developer Agreement

WINDOWS STORE

PRE-RELEASE APPLICATION DEVELOPER AGREEMENT

Version: 2.0 (Archived)

Effective date: May 31, 2012

Important  This archived version of the App Developer Agreement is for your information only. Some countries/regions might require a different version of this agreement. If you have registered as an app developer, you can view your agreement at http://go.microsoft.com/fwlink/p/?LinkID=221922.

Thank you for your interest in building apps for Windows. 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 pre-release Windows Store and the Developer Website.

By submitting an application (or "app", as we refer to them in the Windows Store) 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.

1) WINDOWS STORE ACCOUNT. To submit apps to the Windows Store, you must open a Windows Store developer account through the developer website. Microsoft may verify information you submit when you set up your Store account. There is no obligation to pay an account fee in the pre-release timeframe. Your Store account is only for your use, and you are responsible for all activity that takes place with your Store account. If you fail to keep your account in good standing (for example, by failing to pay fees, if any, associated with the account, by giving Microsoft incorrect or outdated information, or by repeatedly submitting apps that violate this agreement) Microsoft may revoke your Store account, remove your apps from the Windows Store, delete app ratings and reviews, and retain associated account fees (if any) and pursue any other remedies available to Microsoft.

2) SUBMISSION, EVALUATION, CERTIFICATION, AND DISTRIBUTION OF APPS.

a. Submission. You must submit to Microsoft each app that you wish to make available through the pre-release Windows Store, including any updates to each app. 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 pre-release version of the Windows Store. Notwithstanding anything else in this agreement, you understand that Microsoft will not offer any desktop apps through the 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. Desktop apps are any apps built using APIs other than the APIs for Windows Store apps that run on Windows 8.

c. Updates to Apps. You may submit updates to apps for certification and distribution through the Windows Store. Those updates are subject to all of the requirements of this agreement.

d. Evaluation and Testing. You may use the Windows App Certification Kit to test your app on a Windows 8 enabled device.

e. Certification. Microsoft will evaluate each app (including any updates) you submit to determine whether it complies with this agreement (which includes the Certification Requirements) and other policies made available to you (if any). Microsoft will not make any app available in the Windows Store unless and until the app is certified by Microsoft. That process is described in more detail in the Certification Requirements.

f. Content. You are solely responsible for selecting all content made available through your app(s), including your Marks. "Marks" means, for each app, the name, trademarks, logos, icons, titles, product descriptions, and screenshots you provide to Microsoft for use in connection with the marketing and distribution of your app through the Windows Store.

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 available that you submit, even if that app is Certified.

j. App Placement and Promotion. Microsoft will, in its sole discretion, make all decisions regarding placement or promotion of apps in the Windows Store.

k. Removal for later pre-Release. On or before the date on which Windows 8 Release Preview is released, Microsoft may (but is not obligated to) remove any or all apps and content from the pre-release Windows Store, as well as from any devices onto which they may previously have been downloaded or installed.

l. Removal Policies. Microsoft may remove or suspend the availability of any app from the Windows Store for any reason or no reason. 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 or any network, or to comply with any judicial process, government order or lawsuit settlement. Unless your app is removed or disabled for breach of this Agreement or in response to an infringement allegation (in which case Section 10.b will apply), Microsoft will pay to you the amounts owed, if any, in connection with the distribution of your app before removal or disablement.

m. Modification or Discontinuance. The Windows Store is the property of Microsoft. Microsoft may change or discontinue the Windows Store at any time.

3) APPOINTMENT AS AGENT OR COMMISSIONAIRE; LICENSES.

a. Appointment of Microsoft. The Windows Store is a forum through which apps are made available by developers to Windows 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. You appoint Microsoft to act as your agent or commissionaire, as applicable, for these purposes.

b. License to Microsoft. You grant to Microsoft the worldwide right to: host, install, use, reproduce, format, make available to customers (including through multiple tiers of distribution), 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 Windows Store, to verify that it continues to comply with this agreement and remains compatible with Windows. 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. Unpublishing an App. If you use the unpublish functionality in the Dashboard , then within a reasonable period of time Microsoft will cease distribution of the requested app, except as permitted under Section 10.b of this agreement.

d. Product Ratings. The Windows Store will 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 Windows Store. 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, and you may not rate your own 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 and the Marks for each app, in connection with the distribution and marketing of the app through the Windows Store and in any marketing campaigns, presentations and press releases for the app, Windows operating system and/or Windows Store that Microsoft may elect to engage in.

f. Privacy Policy. If your app enables access to and the use of any Internet-based services, or otherwise collects or transmits any user’s personal information, you must maintain a privacy policy. You are responsible for informing customers of your privacy policy (including by submitting that policy to us for display to customers). Your privacy policy must (i) comply with applicable laws and regulations, (ii) inform users of the information collected by your app and how that information is used, stored, secured and disclosed, and (iii) describe the controls that users have over the use and sharing of their information, and how they may access their information. You must also provide access to your privacy policy in the app’s settings as displayed in the Windows settings charm.

g. License to Customer for Windows Store apps. You, not Microsoft, will license the right to install and use each app to customers. You may provide a license agreement to the customer for your app. That license agreement or other terms that govern a customer’s use of your app (including any privacy policy), or a link to them, must be delivered to Microsoft for publication via the product description materials you provide to Microsoft. If you do not provide such materials, then the Standard Application License Terms, attached as Exhibit A, will apply between you and customers of your app. If you provide your own license agreement, your license must, at a minimum, (a) permit the customer to download and run the app on up to five Windows 8 enabled devices that are associated with that customer’s Microsoft account, without payment of any additional fees to you (from either Microsoft or customer), (b) include "disclaimer of warranty" and "limitation on and exclusion of remedies and damages" sections that are at least as protective as Exhibit A and (c) disclaim any support services from Microsoft and the customer’s device manufacturer and network operator (if applicable). Your license terms must also not conflict with the Standard Application License Terms, in any way, except if you include FOSS, your license terms may conflict with the limitations set forth in Section 3 of those Terms, but only to the extent required by the FOSS that you use. "FOSS" means any software licensed under an Open Source Initiative Approved License.

h. Roaming. Your Windows Store app must be licensed and technically enabled to support "roaming." Roaming is a Windows 8 feature that enables users to use your app on up to 5 Windows 8 enabled devices at any one time, unless you identify your app as eligible for distribution by only named OEMs, or on only an ARM or X86 processor. In such case, the app must support roaming to the eligible OEM or processor specific machines. Only the most recently distributed version of your app will be roamed to consumers.

4) APP REQUIREMENTS. Each app you submit to Microsoft for distribution through the Windows Store must meet the following requirements:

a. Certification Requirements. The app, including any app 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 and your marketing of the app 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 and (iii) content ratings regulations. 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 Windows Store 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 will obtain and maintain all necessary rights, clearances and consents, and pay all performance, licensing and reuse fees, including any consideration associated with providing music or video related content in and through your app. 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, it must not cause any non-FOSS Microsoft software to become subject to the terms of any FOSS license.

e. In-App Commerce. All apps submitted through the pre-release version of the Windows Store must be for no charge. Microsoft will not process any payments related to apps during the period before the generally available version of Windows 8, including payments for in-app purchases. If you choose to process your own payments for in-app purchases, the value of those purchases must continue to be available to the customer after the general availability of Windows 8.

f. Sweepstakes and Charitable Contributions. If your app is used to facilitate or collect charitable contributions or to conduct a promotional sweepstakes or contest, you must do so in compliance with applicable law. You must also state clearly that Microsoft is not the fundraiser or sponsor of the promotion. You may not use the Microsoft commerce engine to facilitate charitable contributions or sweepstakes.

5) APP PRICING, PAYMENTS, TRANSACTIONS AND TAXES. All apps submitted through the pre-release version of the Windows Store must be for no charge. Microsoft will not process any payments related to apps during the period before the general availability of Windows 8, and Microsoft will not owe you any amounts in relation to customers downloading your apps from the pre-release Windows Store.

6) WARRANTIES. 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, 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(s) to Microsoft;

d. Listing and distribution of your app in the Windows Store does not and will not violate any agreements to which you are a party or of which you are otherwise aware, and does not and will not misappropriate or infringe the intellectual property or proprietary rights of any third party;

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.

7) CONFIDENTIALITY. 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 which, under the circumstances of disclosure, ought to be treated as 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. You also agree that Microsoft may aggregate business intelligence metrics and report that information in non-identifiable form via the Developer Portal.

8) ACCESS TO TRANSACTION DATA. Even though Microsoft is your agent or commissionaire as described in Section 3(a), Microsoft will not provide you access to any personal information submitted by customers through the Windows Store, 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.

9) DISCLAIMER, LIMITATION OF LIABILITY, AND DEFENSE OF CLAIMS.

a. DISCLAIMER OF WARRANTY. WE PROVIDE THE WINDOWS STORE AND DASHBOARD "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING THE WINDOWS STORE AND DEVELOPER PORTAL. 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 WINDOWS STORE AND DEVELOPER PORTAL.

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. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF MICROSOFT 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 Microsoft and its subsidiaries from and against (including by paying associated any costs, losses, damages or expenses and attorneys’ fees) any and all third party claims: (i) that your app infringes any proprietary or personal right of a third party; (ii) alleging your breach of this agreement; or (iii) relating to the use of or inability to use the app, including any product liability claims. Microsoft will notify you promptly in writing of the claim and, at your reasonable request, provide you with reasonable assistance in defending the claim. You will reimburse Microsoft 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 Microsoft part with respect to any claim covered by this section without Microsoft’s express, prior written consent.

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 terminate this agreement or request that Microsoft remove your app from the Windows Store, Microsoft may retain a copy of the affected app(s), indefinitely. Unless the app was removed from the Windows Store because of a court order relating to intellectual property infringement, Microsoft may reproduce and continue to make the app(s) available only 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.

11) MISCELLANEOUS

a. Notices. All notices that you provide to Microsoft under this agreement must be sent to Microsoft as described at http://go.microsoft.com/fwlink/p/?LinkID=221914.

b. 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.

c. Subcontractors. Microsoft may sublicense its rights under this agreement to 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.

d. 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.

e. Choice of Law and Venue. This agreement is governed by the laws of Washington State. You irrevocably consent to the exclusive jurisdiction and venue of the courts in King County, Washington.

f. Limitation on Claims. To the maximum extent permitted by local law, any claim related to this agreement or to the Windows Store 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.

g. 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 on the Windows Store 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.

h. Survival. Sections 2(g), 9h), (j) and (l), 3(c), (d) and (e), 6-9, 10(b), and 11 will survive any termination or expiration of this agreement.

i. 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.

j. 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

STANDARD APPLICATION LICENSE TERMS

WINDOWS STORE

These license terms are an agreement between you and the application developer. Please read them. They apply to the software application you download from the Windows Store, including any updates or supplements for the application, unless the application comes with separate terms, in which case those terms apply.

BY DOWNLOADING OR USING THE APPLICATION, OR ATTEMPTING TO DO ANY OF THESE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, YOU HAVE NO RIGHT TO AND MUST NOT DOWNLOAD OR USE THE APPLICATION.

The application developer means the entity licensing the application to you, as identified in the Windows Store.

If you comply with these license terms, you have the rights below.

1. INSTALLATION AND USE RIGHTS; EXPIRATION. You may install and use one copy of the application on each of up to five (5) Windows 8 enabled devices that are affiliated with the Microsoft account associated with your Windows Store account. The application may be removed from any devices onto which you have installed the Application, and any associated license rights will terminate upon such removal, no later than the next public release of Windows 8, which may be a Release Preview release.

2. INTERNET-BASED SERVICES.

a. Consent for Internet-Based or Wireless Services. The application connects to computer systems over the Internet, which may include via a wireless network. Using the application operates as your consent to the transmission of standard device information (including but not limited to technical information about your device, system and application software, and peripherals) for internet-based or wireless services.

b. Misuse of Internet-based Services. You may not use any Internet-based service in any way that could harm it or impair anyone else’s use of it or the wireless network. You may not use the service to try to gain unauthorized access to any service, data, account or network by any means.

3. SCOPE OF LICENSE. The application is licensed, not sold. This agreement only gives you some rights to use the application. Application developer reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the application only as expressly permitted in this agreement. You may not

  • work around any technical limitations in the application;
  • reverse engineer, decompile or disassemble the application, except and only to the extent that applicable law expressly permits, despite this limitation;
  • make more copies of the application than specified in this agreement or allowed by applicable law, despite this limitation;
  • publish or otherwise make the application available for others to copy; or
  • rent, lease or lend the application.

4. DOCUMENTATION. If documentation is provided with the Application, you may copy and use the documentation for personal reference purposes.

5. TECHNOLOGY AND EXPORT RESTRICTIONS. The Application may be subject to United States or international technology control or export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the technology used or supported by the application. These laws include restrictions on destinations, end users and end use. For information on Microsoft branded products, see www.microsoft.com/exporting.

6. SUPPORT SERVICES. Microsoft and your hardware manufacturer are not responsible for providing support services for the application. If Microsoft is the application developer, it may provide support services, but is not obligated to do so under this agreement. Contact the application developer to determine what support services are available.

7. ENTIRE AGREEMENT. This agreement, any applicable privacy policy, and the terms for supplements and updates are the entire agreement between you and application developer for the application. If Microsoft is the application developer, this agreement does not change the terms of your relationship with Microsoft with regard to Windows, including the Windows Store.

8. APPLICABLE LAW.

a. United States. If you acquired the application in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.

b. Outside the United States. If you acquired the application in any other country, the laws of that country apply.

9. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your state or country. This agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.

10. DISCLAIMER OF WARRANTY. THE APPLICATION IS LICENSED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR ALL RISK OF USING IT. THE APPLICATION DEVELOPER, ON BEHALF OF ITSELF, MICROSOFT (IF MICROSOFT IS NOT THE APPLICATION DEVELOPER), AND EACH OF OUR RESPECTIVE AFFILIATES, VENDORS, AGENTS AND SUPPLIERS, GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS IN RELATION TO THE APPLICATION. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, APPLICATION DEVELOPER AND MICROSOFT EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

11. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES.

TO THE EXTENT NOT PROHIBITED BY LAW, YOU CAN RECOVER FROM THE APPLICATION DEVELOPER ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE APPLICATION OR $1.00, WHICHEVER IS GREATER. YOU WILL NOT, AND WAIVE ANY RIGHT TO, SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM THE APPLICATION DEVELOPER.

This limitation applies to

  • anything related to the application or services made available through the application; and

  • claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.

It also applies even if

  • repair, replacement or a refund for the application does not fully compensate you for any losses; or

  • application developer knew or should have known about the possibility of the damages.

 

 

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