When software developers, or their clients, launch an app in the iStore, there are default terms and conditions. These terms and conditions are Apple’s standard End User Licence Agreement (EULA).
However, there are a number of situations where it might be in the best interests of the owner of the app to provide their own, customised EULA instead of using the default one.
Why would your app need a custom EULA?
While Apple’s EULA deals with most of the usual licensing issues, it may not align perfectly with Australian law.
For example, regardless of the customer (End User) agreeing to the jurisdiction of the Courts of California and the law of the United States in the default EULA, various terms will apply under Australian law. This includes the statutory guarantees as provided in schedule 2 of the Competition and Consumer Act 2010 (Cth).
Further to this, because of the evolution of the case law in the area of unfair contract terms, it’s possible that some of the terms and conditions in the default EULA will become “unfair” and unenforceable by default.
Apple requirements for customised EULA’s
Prior to inclusion of the app in the iStore, Apple provides a guide for developers who intend to supply their own EULA with their app. In short, the guide describes the minimum requirements that the bespoke EULA must meet:
- the EULA should acknowledge that parties to the agreement are the developer and the end user and not Apple;
- the developer is solely responsible for the app;
- the EULA must not conflict (be less restrictive) that the terms and conditions of the iStore;
- the scope of the EULA is to be limited to a non-transferrable licence to use the app on the device which it is downloaded;
- the developer is solely responsible for support;
- the parties must acknowledge that Apple is not responsible for supporting the app;
- the developer must be responsible for product warranties;
- should the app fail, Apple will refund the purchase price of the app and thereafter Apple will have no further responsibility;
- the EULA must not attempt to limit the developers liability over and what is allowable under statute;
- in the event of any claimed intellectual property infringement, the developer must be responsible for investigating the defending the matter and not Apple;
- the developer must warrant that they are outside of the United States and, in particular, that they are not in a country which is “embargoed by the United States” or is deemed to be a “terrorist supporting country”;
- the contact details of the developer and customer service information in the event that the end user needs to contact the developer;
- the EULA must provide that the Apple is a third party beneficiary to the EULA and agree that Apple and any of its subsidiaries may enforce the terms of against any end user.
As you can see, there are quite a few issues to consider when drafting bespoke EULA’s to comply with Apple’s requirements. If you’re interested in reading the details, the complete guide is available here: Minimum Terms of Developer’s End-User License Agreement.
If you require a customised EULA for your app, the best advice is to speak to a lawyer who has experience in this area and, one who is aware of the recent ACCC crackdown on unfair contract terms in online contracts. It’s the only way to protect yourself and your company.
Malcolm Burrows is the Legal Practice Director of the commercial law firm, Dundas Lawyers. Follow him on Twitter (@ITCorporateLaw).