Smartphones are incredibly useful things, and part of that usefulness comes from being able to download mobile applications (apps) to them.
What’s so special about an App?
Mobile apps are typically simpler than desktop applications, and commonly interact with a server to provide a service to the user, rather than having the processing taking place on the client-side (a wild generalisation I know). So for example Facebook or WhatsApp both use apps to operate on smartphones, but the service provided by both is dependent on architecture which is far broader than just the app written on the phone.
Nonetheless, if you develop an app, you still need to ensure that you have a proper end user licence agreement (EULA) with the end user just as you would with any other software. There are a number of factors that make a EULA for an app different though.
Firstly, because an app is often a means of accessing a service, you must ensure that the implications of offering that service are dealt with. So for example a VoIP app requires terms dealing with charges and payment for making calls. A social media app would need terms requiring the user to act appropriately in dealing with other users and dealing with protection of personal information.
Secondly, apps are usually distributed by third parties. While you can certainly allow users to download apps from your own portal, the usual and accepted practice is for apps to be downloaded from a recognised “store”. The usual suspects here are Apple’s “iStore” and Google’s “Play Store”, which each provide a central locale form which to download aps for their respective mobile operating systems. Of course, allowing you to have your users download apps from their systems exposes these companies to certain risks, and they must also deal with their own commercial interests. They will typically do this in two ways. They require you to enter into an agreement with them setting out the terms under which you may host your app with them. More importantly for this article, they may require that you insert certain clauses in your EULA to ensure that their interests are protected.
Apple requires you to include certain basic terms in the EULA, which from Apple’s perspective goes largely to protect Apple from liability should the app go pear-shaped. As an added bonus the user must undertake that it is not located in a “terrorist supporting” country.
If the developer does not include its own EULA, Apple will automatically impose its own terms. These protect the developer to a point, but are primarily there to protect Apple. For example they do not describe what the app does, and take little account of any special requirements of consumer law. As the terms are also subject to the jurisdiction of the State of California, you would be well advised to draw up your own.
Google’s Play Store is far more flexible. You enter into into a “Developer Distribution Agreement” with Google, which amongst much else allows you to include your own EULA with the app. You must also adhere to Google’s policies framework, which deals with how the app should deal with third party intellectual property, privacy, security, restricted content etc. Of course any EULA used with the app may not contradict the content of this framework.
It is precisely because Google is so flexible that you MUST have a EULA in place if distributing your app via the Google Play Store – you will have nothing whatever in place if you do not.
The other “Android” stores, such as the Amazon store, have their own requirements.
In addition to any terms required by the store, you must ensure that your own rights are properly protected. It is impossible to list all the grounds that a EULA must cover here, and these will differ wildly depending on the nature of the app, but a good sample would be these:
- Licence terms for use of the software that is distributed as the app
- Service description
- Creation of user accounts etc
- Consumer protection
- Limitation of liability
- Payment for the app itself or for ongoing service provided via the app (for which the store will typically impose its own terms if payment is made via the store)
- Privacy and data protection
If you need any assistance with drawing up your EULA, please contact us.
This article should not be used or relied upon as professional advice and is for information and marketing purposes. Please consult with one of our attorneys should you need legal assistance relating to this area of law.