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Do I need an App EULA?

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John Giles

Many people are wondering whether they need an End User Licence Agreement (EULA) for the App (or application) that they have developed (like an iPhone App, Mac App, or iPad App).  It might be an App for Apple, Android, Blackberry or Nokia devices.  In this article, we look at why you might need one. We look at the App Store Terms and Conditions and the Android Market Terms. And then give you a summary of the position and advice on what steps to take. When can you use the default EULA?  Is the position different with Apple and Android Apps? Is there a template EULA for Android Apps?

App Store Terms and Conditions

There are terms and conditions that apply to the App Store. The relevant bits for the purpose of this article are set out below.  We have highlighted the important bits in red.

Your license to each App Store Product is subject to the Licensed Application End User License Agreement set forth below. You agree that the terms of the Licensed Application End User License Agreement will apply to each Apple Product and to each Third-Party Product that you license through the Mac App Store or App Store, unless the App Store Product is covered by a valid end user license agreement entered into between you and the publisher of the App Store Product (the “Publisher”), in which case the Publisher’s end user license agreement will apply to that App Store Product. The Publisher reserves all rights in and to the App Store Product not expressly granted to you.

You acknowledge that the license you purchase to each Apple Product that you obtain through the Mac App Store or App Store is a binding agreement between you and iTunes. You acknowledge that: once you purchase a Third-Party Product from iTunes, you are entering into a binding agreement directly with the Publisher of that Third-Party Product governing your use of that Third-Party Product; and iTunes is not a party to the license between you and the Publisher with respect to that Third-Party Product. The Publisher of each Third-Party Product is solely responsible for that Third-Party Product, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that Third-Party Product.

……

LICENSED APPLICATION END USER LICENCE AGREEMENT

The Mac App Store Products and App Store Products (collectively, “App Store Products”) made available through the Mac App Store and App Store (collectively, the “App Stores”) are licensed, not sold, to you. Your licence to each App Store Product that you obtain through the App Stores is subject to your prior acceptance of this Licensed Application End User Licence Agreement, and you agree that the terms of this Licensed Application End User Licence Agreement will apply to each App Store Product that you license through the App Stores, unless that App Store Product is covered by a valid end user licence agreement entered into between you and the Publisher of that App Store Product, in which case the terms of that separate end user licence agreement will govern. Your licence to any Apple Product under this Licensed Application End User Licence Agreement is granted by iTunes, and your licence to any Third-Party Product under this Licensed Application End User Licence Agreement is granted by the Publisher of that Third-Party Product. Any App Store Product that is subject to the licence granted under this Licensed Application End User Licence Agreement is referred to herein as the “Licensed Application”. Publisher or iTunes as applicable (the “Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Licensed Application End User Licence Agreement.

….

You can then read the full default EULA under the heading LICENSED APPLICATION END USER LICENCE AGREEMENT.

So, what does this mean?  It means that if you (as a developer) make an App available through the App Store and you don’t have a EULA, then the default App EULA in the App Store Terms and Conditions will apply. It is a pretty good EULA and will give you many protections.  Like limiting your liability, disclaiming warranties and protecting your rights to your App. But you might wish to tailor it to your specific requirements.  For example, you might want South African laws and not English laws to apply.  We can help you to tailor it.

Android Market Terms

What about the Android market?  There are two terms that you need to take into account.  The first is the Android Developer Distribution Agreement.  This is the agreement between Google and you the developer.

5.4 You grant to the user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Product on the Device. If you choose, you may include a separate end user license agreement (EULA) in your Product that will govern the user’s rights to the Product in lieu of the previous sentence.

The second is the Android Market Terms of Service.  These do not contain a default EULA like the App Store terms and conditions, but they do include some of the terms that you would find it in.  For example, your intellectual property rights in the products are protected and warranties are disclaimed, but your liability is not limited and you are not indemnified.  Only Google is!

So, when it comes to Android Apps there is a much stronger argument for having your own EULA that applies to your Apps.  Google’s terms maybe the way they are because Google is such a big fan of open source.  If you want to find out how to actually add a EULA to an Android App, then you can read this article at bees4honey.

Summary of the position

The first question is whether your App is for Apple device or Android device.  We will shortly be adding the position for Blackberry and Nokia devices.

If Apple, then you should ask yourself the following questions:

  1. Could I make significant money from my App?
  2. Are there any specific risks that relate to my App?
  3. Could the user suffer damages?

If the answer is to any of the questions is yes, then you (or you can ask us to) should go through the default LICENSED APPLICATION END USER LICENCE AGREEMENT and decide whether you should create your own App EULA tailored just for you.  Interestingly, Apple has a tailored EULA for many of the Apps (like iPhoto) that it makes available through the App Store.

If Android, then you should draft your own EULA.  Simple as that.  It is not a requirement, but it is a good idea for many reasons.  You will protect your intellectual property rights, you will limit your liability and disclaim warranties.  Why go to the effort of developing an App if you are not going to protect it?  You also want to stay out of trouble. Interestingly, Google has a tailored EULA for many of the Apps (like Maps) that it makes available through the Market. You could even take the default LICENSED APPLICATION END USER LICENCE AGREEMENT and tailor it for your Android App, but that would be a bit cheeky.  Although there is a strong argument for wanting a consistent EULA across platforms if you have an App that is available on multiple platforms.

If Nokia, then you should reconsider whether it is even worth developing the App in the first place.  :)

But seriously, if you are developing an App for multiple platforms (Apple, Android, Blackberry and Nokia), then you should have an App EULA that applies regardless of the platform.

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