Bespoke end user licence agreements for the iStore

When Software Developers (Developers) or their clients launch a new application (App) in the iStore, the default terms and conditions are Apple’s standard End User Licence Agreement (EULA).  However, a number of situations arise where it may be in the best interests of the owner of the App to provide their own EULA in place of the default one.  

Why would you need to deviate from the standard EULA?

Apple’s EULA deals with most of the usual licensing issues, however 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, various terms will apply including 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 bespoke EULA’s

Prior to inclusion of the App in the iStore, Apple has provided a guide for Developers who intend to supply their own EULA with an App.  In short, the guide describes the minimum requirements which 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 fo 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.

In short, there is quite a few issues to consider when drafting bespoke EULA’s to comply with Apple’s requirements.  The complete guide is available  on the Apple website.

Ensuring that the terms and conditions are legally binding

The usual rules of bringing the EULA to the attention of end users apply in this instance.  The Developer must do all that is reasonably possible to bring the EULA to the attention of the end user.  See our article: “Are your website terms and conditions binding?”

Further information

If you would like to discuss having a lawyer draft a bespoke EULA that complies with the rules for the iStore, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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