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App EULA

This end user licence agreement (EULA) has been designed for software developers that publish applications for smartphones and similar devices. It can be used for both B2B and B2C software, and for both free and paid software, subject to the comments below on cancellation rights.

The vast majority of smartphone apps are delivered to users through a distribution platform, such as the Google Play store. The distribution platform terms and conditions will typically have an impact upon the legal relationship between the developer on the one hand and end users on the other. For instance, the developer may be required to license the smartphone app to end users on defined terms.

Optional clauses are included covering cloud services, maintenance services and support services.

The services that may be provided in connection with the software (cloud services, support and so on) are specified to be provided during the term of the contract. Accordingly, if the contract is terminated, the services will terminate, although the licence of the software may (eg if specified as perpetual) continue after termination.

This document has been drafted with one eye upon the Google Play store terms and conditions (UK version dated 11 January 2017) and Google's developer distribution agreement (version dated 2 July 2016). Notwithstanding this drafting approach, it is perfectly possible to edit this EULA in such a way that it no longer complies the the requirements of the Google legal documents. You should therefore familiarise yourself with those documents before editing. For relevant Google documentation, see:

https://play.google.com/intl/ALL_us/about/developer-distribution-agreement.html

https://play.google.com/intl/en_uk/about/play-terms.html

The EULA assumes that all terms and conditions relating to charges and payments (including in relation to initial purchases, subscriptions, in-app purchases, in-app-subscriptions and independent subscriptions) will be set out elsewhere. Provisions relating to charges and payments in respect of initial purchases and in-app transactions are typically covered in the relevant app store terms and conditions.

In addition, this EULA assumes that consumer rights to cancel distance contracts will be covered elsewhere. Whilst the current version of the Google Play terms and conditions does reference these rights in relation to initial purchases, the treatment is somewhat brief. Moreover, the Google terms and conditions do not seem to cover distance contract cancellation rights in relation to in-app purchases and subscriptions. Whether that is a problem depends upon the circumstances. For instance, the correct approach in relation to an in-app purchase may depend upon the nature of what exactly is being sold. The application of the law in this area (even just English law) is quite tricky, and you should take professional advice if you are uncertain.

In respect of personal data of users processed by the licensor, the EULA assumes that the licensor will be a data controller rather than a data processor.

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App EULA contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term (indefinite or subscription).
  3. App Stores: application of app store terms and conditions; conflict with app store terms and conditions;
    Licensor
     benefits from app store terms and conditions; matters covered by the app store terms and conditions; rights of app store operator.
  4. Licence: grant of licence to use app; licence for app use by family group; no sub-licensing of software with optional exceptions; software licence prohibitions.
  5. Source Code: no licence of source code.
  6. Hosted Services: grant of licence to use hosted services via software; prohibitions on the use of the hosted services as per software prohibitions; availability of hosted services; no damaging use of hosted services; no unlawful use of hosted services; software liability limitations apply to hosted services.
  7. User
    Data:
    licence of second party data (hosted services); warranties relating to second party data.
  8. Maintenance Services: maintenance services provision (no obligation); obligation to apply updates and upgrades; consequences of failure to apply update or upgrade; upgrades may be chargeable.
  9. Support Services: discretion to provide support services; support services provision; helpdesk obligation for support services; support services to be provided remotely; support services responses to be prompt; specific exceptions to support services; no guarantees in relation to support services.
  10. Privacy policy: personal data processed subject to privacy policy.
  11. No assignment of Intellectual Property Rights: no assignments of intellectual property rights.
  12. Suspension of Services: suspension of services.
  13. User
     indemnity:
    second party indemnifies first party upon breach.
  14. Warranties: first party warranty of authority; software intellectual property infringement warranty; breach of software infringement warranty; second party warranty of authority; exclusion of implied warranties and representations.
  15. Acknowledgements and warranty limitations: software not error free; software not entirely secure; no legal etc advice with software.
  16. Limitations and exclusions of liability: caveats to limits of liability (B2C or B2C); interpretation of limits of liability; no liability for force majeure; no liability for loss of profits; no liability for loss of revenue; no liability for loss of opportunities; no liability for loss of data or software; no liability for consequential loss; per event liability cap upon services contract; aggregate liability cap upon services contract.
  17. Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
  18. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights.
  19. General: no waiver; severability; variation written and signed; assymetric assignment of contractual rights (B2B, B2C or mixed); no third party rights; entire agreement: documents; governing law; exclusive jurisdiction.
  20. Export control: application of export laws; compliance with export laws; specific export control compliance obligations.
  21. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.
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