Many people are wondering whether they need an App EULA (or Application End User Licence Agreement) for the App (or application) they have developed (such as an iPhone App, Mac App, or iPad App). It might be an App for Apple or Android devices. In this article, we look at why you might need one. We look at the Apple Media Services Terms and Conditions and the Google Play Store Terms. And then give you a summary of the position and advice on what steps to take.
When can you use the default App EULA? Is the position different between Apple and Android Apps? Is there a template App EULA for Android Apps?
Apple Media Services Terms and Conditions and an App EULA
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 turquoise.
“App licenses are provided to you by Apple or a third party developer (“App Provider”). Apple acts as an agent for App Providers in operating the App Store and is not a party to the sales contract or user agreement between you and the App Provider.” “An App licensed by Apple is an “Apple App;” an App licensed by an App Provider is a “Third Party App”. Any App that you acquire is governed by the Licensed Application End User License Agreement (“Standard EULA”) set forth below, unless Apple or the App Provider provides an overriding custom license agreement (“Custom EULA”).”
“Apps made available through the App Store are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of either this Licensed Application End User License Agreement (“Standard EULA”), or a custom end user license agreement between you and the App Provider (“Custom EULA”), if one is provided. Your license to any Apple App under this Standard EULA or Custom EULA is granted by Apple, and your license to any Third Party App under this Standard EULA or Custom EULA is granted by the App Provider of that Third Party App.”
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 an EULA, the default App EULA in the Apple Media Services 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 law, not English law, to apply. We can help you tailor it.
Google Play Store Terms and App EULA
What about the Google Play Store? There are two terms that you need to take into account. The first is the Google Play Developer Distribution Agreement. This is the agreement between Google and you, the developer. “5.3 You grant to the user a nonexclusive, worldwide, and perpetual license to perform, modify color of, or add themes to, your Product icons, display (including with the color and theme modifications), and use the Product.” “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, but, to the extent that EULA conflicts with this Agreement, this Agreement will supersede the EULA. You acknowledge that the EULA for each of the Products is solely between You and the user. Google will not be responsible for, and will not have any liability whatsoever under, any EULA.”
The second is the Google Play Terms of Service. These do not contain a default EULA like the Apple Media Services Terms and Conditions, but they do include some of the terms that you would find. 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 may be the way they are because Google is such a big fan of open source. If you want to find out how to actually add an EULA to an App, then you can read this article.
Summary of the position regards App EULAs
The first question is whether your App is for an Apple or Android device.
Apple Apps
If Apple, you should ask yourself the following questions.
- Could I make significant money from my App?
- Are there any specific risks that relate to my App?
- Could the user suffer damages?
If the answer to any of the questions is yes, 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 (such as iPhoto) it makes available through the App Store.
Android Apps
If you’re on Android, 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, 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 a consistent EULA across platforms, if you have an App available on multiple platforms.
If you are developing an App for multiple platforms (Apple and Android), you should have an App EULA that applies across all platforms.
