Many people do not take the Terms of Use (also called Terms of Service or Terms and Conditions) very seriously. The agreement can be many pages long and usually doesn’t even require the user to expressly accept its terms. So most people don’t even read them…but, in most cases, your use of the mobile app or website, is construed as your agreement to these terms (which can change at any time, by the way) and they constitute a legally binding agreement between the provider of the software and the user. 

You got that, right? When you are using a mobile app, you are “signing” a contract with the app provider.

Now that you know the Terms of Use is a legally-binding agreement, let’s talk a bit about what the terms usually contain.  (By the way, any reference I make to “app” also includes websites and other kinds of software that have Terms of Use.) The following are some of the basic things you are typically agreeing to:

·      User requirements. The section usually states that you are of legal age to enter into a legal agreement. That age is 18 in most jurisdictions.  You are also agreeing that you are not in a country where use of the app would be considered illegal and that you are not in a country that is subject to a US embargo or designated as a “terrorist-supporting” country.  In addition, you cannot be listed on any government list of prohibited or restricted parties.

·      Your content. This section usually contain information about the kinds of content that are appropriate including agreeing that you are not infringing anyone else’ intellectual property rights with what you are posting to the app.

·      Prohibitions. This section talks about the things you are not allowed to do with the app or uses that are prohibited. Many of these prohibitions have to do with protection of the provider’s IP rights (example: you aren’t allowed to reverse engineer or use other techniques to try to steal the provider’s trade secrets). The other most common prohibition has to do with using the app to defame or harass others. Many apps also prohibit the posting of sexually explicit content or content that encourages others to commit violent acts or crimes.

·      IP ownership. This section explicitly states that the provider has the IP rights in the app or that the provider has a license to use the IP that is contained in the app.  You are also agreeing that you understand your use of the app gives you no ownership rights in the app.

·      Warranty disclaimers and limitations of liability. This section describes the things that the provider does not warrant (example: the app may not work for the purposes you need it for) and how the provider’s liability is limited if the app somehow causes some kind of harm to you that is not disclaimed by the warranty disclaimers.

·      Dispute resolution. This section lets you know the state whose laws govern the Terms of Use and how you can go about filing suit against the provider if there is a dispute.

·      Privacy. This section usually refers you to the app’s Privacy Policy (see the blog post on privacy policies for more information on them).  If the terms say the privacy policy is “incorporated by reference,” that means the Privacy Policy merges with the Terms of Use and is essentially part of it.

The provisions I just mentioned are the generic ones that are contained in almost every Terms of Use but, depending on the nature of the app, there can be many more restrictions on your use or more promises you are making to the provider. Remember, these are legally binding on you…whether you read them or not.

So, from time to time, you might want to read the Terms of Use for your favorite app. The terms may have changed since the last time you read it (if you ever read it at all). The provider does not have to let you know when changes are made; the onus is on the user to check for updates. Make sure you know what you are agreeing to. If you need help understanding an app’s Terms of Use or, if you are a provider, and need Terms of Use drafted, contact me for help.



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