app-store-640What is the deal with EULAs for App Developers?

With the new year quickly approaching, the recent Instagram terms of service debacle and 2013 laws soon coming into effect, we have been receiving a lot of questions asking “What’s the deal with end-user licensing agreements (EULA)?” This question is especially important for iOS developers because the Apple Store requires users to agree to the terms of their own EULA in order to download any app. The Apple Store EULA not only protects Apple, but also minimally covers the apps (and thus the app developers) in the app store. This leaves many app developers wondering, how much are they covered by Apple’s EULA, and whether they need their own EULA.

Standard End-User Licensing Agreements

An EULA, or software license agreement, is the contract between the licensor and purchaser, establishing the purchaser’s right to use the software. A standard EULA covers a lot of the areas that should be picked up in any well drafted terms: defining the scope of the licence to be granted to the user of the copyright and other intellectual property comprised in the app, consent to using technical data gathered about the user’s device, exclusion of liability for third party materials and websites, exclusion of warranties and limitation of liability.

The App Store Factor

If you submit your app for the iPhone, or other iOS device, to the Apple App Store then Apple has users sign up to a whole raft of terms and conditions in order to access the App Store. As you would expect, most of these are there to protect Apple’s intellectual property and that of their licensing partners. What is less obvious is that when users accept Apple’s terms they also sign up to the snappily-named Licensed Application End User Licence Agreement.

This standard EULA may be enough to cover you against legal risk. It really depends on what your app does. There are some areas that the standard Apple EULA doesn’t cover including payment terms, user generated content, extensive limitations on liability, and warranties for third party content.

EULAs vs TOUs

EULAs and Terms of Use (TOU) serve the same purpose, they establish a contract for use of a product between the user and company. Many lawyers use EULA and TOU interchangeably, but consider TOUs a more robust set of terms. An EULA typically applies only to an agreement that governs use of that which is licensed, i.e. software. A TOU typically contains many (if not all) of the terms found in an EULA. So you do not need to have your own TOU and EULA in the same app. But, if you have your own TOU that users agree to on your app, then the standard Apple EULA will not apply.

Your Own TOU and Privacy Policy

The standard Apple EULA will only cover the most basic of apps. As apps get more complex, more social, and process more payments, the standard EULA becomes more insufficient. If you have a very basic app then the Apple EULA should do, but if your app does a little bit more then you might want to consider your own TOU.

Your TOU should cover all the basics of the standard Apple EULA. Certain provisions should not be excluded, like the “Consent to Use of Data.” Otherwise, the user will not have given consent to use technical information that you may gather about their device.

Most app developers by this point know that they should have their own privacy policy that users agree to. Any personalized TOU will also need to be agreed to by any downloading user. With the prices of TOU and privacy policy drafting going down through service marketplaces or automated software, getting this kind of legal service is becoming affordable for even the most broke app developer.

As always, if you need any help figuring this out, let us know – we happen to know a few good lawyers.

Some Attorneys Who May Be Helpful:

Business LawyersLos Angeles Business LawyersSan Diego Business Lawyers •  San Francisco Business Lawyers

About Author Matt Faustman


Matt is the co-founder and CEO at UpCounsel. Matt believes in the power of online platforms to change antiquated ways of life and founded UpCounsel to make legal services efficiently accessible. He is responsible for our overall vision and growth of the UpCounsel platform. Before founding UpCounsel, Matt practiced as a startup and business attorney.

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