Any business that offers mobile applications (apps) or other software programs for download over the Internet or via wireless should take the time to present an End-User License Agreement (commonly referred to as a “EULA”) that the end-user must agree to, in full, prior to downloading the applicable software/mobile app.

EULAs are essential in establishing the ownership rights of the applicable mobile app or software developer, while setting forth the limited, conditional terms of the license that the end-user acquires in and to the underlying software/app.  Only when such intellectual property protections are memorialized should a business permit any third party end-user to access their valuable software/mobile app.

License-Plus

While an EULA should, at a minimum, establish the ownership rights of the software/app developer, and the limited rights of use granted to the end-user, EULAs can serve multiple important purposes.  Due to the fact that the EULA (together with the privacy policy, as recommended) is often the only agreement in place between the software/mobile app developer and the consuming public, it is essential that the EULA address many of the other contingencies that can arise pursuant to the underlying commercial relationship.

Depending on whether the EULA serves as the primary agreement with end-users, the EULA should address some or all of following, which is by no means an exhaustive list: (1) a description of the functionality of the software/mobile app; (2) the installation and uninstall process associated with the software/mobile app; (3) how updates to the software/mobile app, if any, will be provided; (4) ownership in and to any end-user generated content; (5) disclaimers of warranties and limitations of liability; (6) any fees associated with use of the software/mobile app and the process for cancellations/refunds; (7) Digital Millennium Copyright Act safe harbor language; and (8) a dispute resolution section, including choice of law and arbitration provisions.

Make Your EULA Personal

The specific terms contained in an EULA will inevitably vary depending on the type of software program/mobile app, and the underlying commercial relationship that it addresses.  For example, some EULAs will have strict limitations on use and sharing of the content generated by the software program/mobile app, while others might permit end-users a wider latitude with respect to such content.  In addition, where an EULA covers a software program/mobile app that end-users must pay a fee to access, there are numerous payment-related provisions that must be included.

It is highly recommended that you retain qualified legal counsel to ensure that any EULA that you use in connection with your software/mobile app offerings provides adequate levels of protection to safeguard your intellectual property, while anticipating other important contingencies.