Are you a developer looking to create an application to feature on Apple’s App store? If you are, you should get an understanding of how an End User Licence Agreement works, so that your IT lawyer can assist you with the drafting. The benefit of having your own tailored End User Licence Agreement is that you can ensure your application is adequately protected instead of relying on the terms of Apple’s default End User Licence Agreement.

Why draft your own End User Licence Agreement?

Although Apple’s End User Licence Agreements touch on most of the issues you’ll want covered, in particular licensing, the wording and terminology might not reflect Australian law.

The importance of having bespoke terms becomes more obvious when you consider how Apple’s terms are based on the laws of the United States. Although you are agreeing to be bound by the laws of a different jurisdiction, certain Australian laws will automatically apply, such as the statutory consumer guarantees in Schedule 2 of the Competition and Consumer Act 2010 (Cth). In addition, when you consider how the common law surrounding ‘unfair contract terms’ in Australia has developed, some of the default terms and conditions of Apple’s End User Licence Agreement might be regarded as ‘unfair’. This would mean that they become unenforceable against the end user i.e. the customer.

What to include in your End User Licence Agreement

Before you are allowed to have your app feature in Apple’s App Store, there are a number of requirements that need to be met. These are Apple’s rules that all app owners that bring their own End User Licence Agreement must comply with. They include:

  • Acknowledging that Apple is no longer a party to the App owner’s End User Licence Agreement;
  • Taking full responsibility for the App;
  • Making sure that the terms of the End User Licence Agreement do not contradict those of Apple’s iStore;
  • Limiting the extent to which the End User Licence Agreement applies to its users, so that only the device that downloaded the App is licenced to use the App, and therefore a party to the Agreement;
  • Providing full support to the End Users;
  • Taking responsibility for any warranties or guarantees attached to the App;
  • Acknowledging that Apple’s liability is limited to a refund of the cost price of the App in the event that it does not work;
  • Not attempting to draft the terms of the End User Licence Agreement so that they limit the liability of the App owner beyond the regulations of the relevant Australian laws;
  • Taking responsibility for investigating any claims of intellectual property infringement;
  • Warranting to Apple that, if the App owner is in another country, it is not in a country that supports terrorists/is under an embargo;
  • Having the contact details of the App owner/Developer available in case the customer needs customer support;
  • Acknowledging that Apple has the right to enforce the terms and conditions of the End User Licence Agreement against any of the customers of the App. This essentially makes them a 3rd party beneficiary.

Conclusion

To ensure that your End User Licence Agreement is enforceable, it needs to be available for end users to access. If you are developing an App and require the assistance of an IT solicitor, contact LegalVision on 1300 544 755 and ask to speak with one of our team of IT solicitors. We have assisted in drafting many End User Licence Agreements and can make sure you are compliant both with current Australian law and the minimum requirements that Apple imposes on those contributing Apps to the App store.

Lachlan McKnight

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