This is an end user license agreement (EULA) for use with a mobile application that is available for download to and use on a smartphone, tablet computer, or other mobile device.
A mobile app EULA is a contract between the app developer (or other licensor) and an individual who downloads the app on a mobile device. While clickwrap agreements require the user to take an affirmative action to agree to the license terms, browsewrap agreements are agreements when an app developer provides a link to the EULA without requiring affirmative acceptance. The agreement is formed by assumption when the user downloads or otherwise uses the app.
Historically, when disputes arise, the courts held a clickwrap agreement to be more enforceable than a browsewrap agreement. In order for a browsewrap agreement to be enforceable the user should be put on notice about its existence. The link to the agreement should be prominently placed on the developer’s website, marketplace and the app itself. Depending on the circumstances, the courts can hold an agreement enforceable but strike out some terms under presumption that the user did not see it and did not explicitly agree to it. If the app includes valuable IP or features that present a higher risk of liability, the app developers should consider implementing the EULA as a clickwrap agreement.
A browsewrap agreement typically includes such provisions as:
• Granting the end user a license to download, install, and use the app.
• Governing the end user's use of the app.
• Addressing user privacy and the end user's use of materials accessible through the app, often by incorporating by reference the terms of privacy policies and website terms of use.
An agreement must be carefully customized for the particular app with consideration of many factors including but not limited to the intended audience, whether an app is for commercial or consumer use, has interactive features, advertising content, and certainly specific laws that may apply or the nature of the app that may create unique liability concerns. The requirements imposed by each relevant mobile platform provider should also be consulted.
The app developer should always take account of any relevant industry-specific laws and regulations and seek comprehensive consultation from an experienced business attorney on compliance practices and policies.
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