Considering building a mobile app? Terms and conditions best practice

Behind every great service lies a clear terms of use document, and apps are no exception. To avoid leaving yourself open to customer complaints or legal disputes against your app, our corporate and commercial lawyer Oliver Williams has outlined some best practices and important clauses you should consider including in your Terms and Conditions.

Do you legally need to share Terms and Conditions for mobile apps?

Whilst there is no legal obligation to provide the users of a mobile app with Terms and Conditions, it is strongly advisable for the provider of a mobile app to display Terms and Conditions on the app, which the user agrees to before proceeding to use the app.

The Terms and Conditions will establish the rules that users are expected to follow, and enshrine the legal relationship between the provider and the user of the app. Properly drafted Terms and Conditions will reduce the chances of disputes arising, whilst at the same time giving the provider both protection against legal action by the user, and the basis for taking legal action itself where necessary. Conversely, users will generally have more confidence in apps that clearly explain what rights and responsibilities they have.

What Terms and Conditions are best to include?

The specific clauses that are included in a provider’s Terms and Conditions will vary depending on the nature of the app and the services being provided, but might typically include:

  1. An introductory clause explaining that the Terms and Conditions set out the contract between the provider and the user, and who the contract affects and when it begins.
  2. Where relevant, a clause explaining if anyone is prohibited from using the app (for example, on the basis of age restrictions – although care must be taken not to breach anti-discrimination laws!).
  3. Clauses explaining what users may and may not do on the app, and setting out prohibited uses, banned activities, etc. For example, users can’t do anything to interfere with the intended operation of the app, users can’t access or collect information in unauthorised ways, users can’t do anything unlawful, misleading or fraudulent whilst using the app, and users can’t impersonate others or provide inaccurate information.
  4. A clause allowing the provider to terminate/deactivate (or perhaps sometimes just suspend) the user’s account, or apply other penalties, if the user misuses the app or breaches the Terms and Conditions.
  5. A clause protecting the provider’s intellectual property rights (including commercial branding and all copyright and other intellectual property rights in the app itself), and preventing unauthorised use of the same.
  6. Where an app provides a platform for messaging/social media, Clauses dealing with the ownership of user generated content, compliance by users with applicable laws and regulations (and any other standards that the provider is applying to user generated content, such as the prohibition of content that may cause harm to others), and violation by users of third party intellectual property rights, among other issues.
  7. Where users pay to use an app, or make payments to others through an app (for example, for the purchase of goods and/or services), clauses explaining how and when payments can be made, trial periods for subscriptions, etc.
  8. Disclaimer clauses limiting the provider’s financial and legal liability, to the extent permitted by law, where problems arise with the app, in relation to financial losses and other damages arising as a result of the use of the app, and also in relation to content posted by users and the actions of users generally.
  9. Where there are specific laws/regulations that apply to the particular app in question (for example, healthcare apps that can be used for diagnosing, preventing, monitoring and/or treating illness or injury may be subject to the UK Medical Devices Regulations of 2002), clauses dealing with compliance with such laws/regulations and warranting such compliance.
  10. A jurisdiction clause stating the governing law of the Terms and Conditions.

Additional clauses to consider

The Terms and Conditions for each individual app will usually also contain other clauses that are specific to the nature of the particular app, the way it works, and the functions it performs. For example, an app through which goods are purchased might have clauses in its Terms and Conditions dealing with issues that arise in relation to the sale of goods, such as delivery of the goods, title and risk in the goods, payment, refunds, etc.

The Terms and Conditions might also contain terms dealing with the provider’s privacy policy, and the user’s agreement to/acceptance of such policy. Pursuant to the UK Data Protection Act 2018, and the UK General Data Protection Regulations, a provider must make disclosures related to its personal data collection and processing activities, and its use of personal data, via a comprehensive privacy policy (which should usually also set out details of the security measures in place in relation to such data, and details of data subjects’ rights in relation to such data) and implement methods for receiving user consent to the same (and for the withdrawal of user consent where relevant). However, it is usual practice to set out the privacy policy and the consent mechanism thereto, in a separate document from the Terms and Conditions, because the terms of privacy policies are usually quite extensive, and because it is important to be absolutely clear that the user is giving agreement/consent to the privacy policy.

Where to display the app's Terms

It is advisable to ensure that the Terms and Conditions relating to an app are displayed in such a way that users cannot claim not to have seen them before using the app, and indeed where users can easily find and reference them. It is especially important that the Terms and Conditions are displayed to users before they create a new account, before they access updates to the app, and before they make purchases or take out subscriptions.

Acceptance of the Terms and Conditions

Simply proceeding to use an app after reading the Terms and Conditions can be enough to infer that the user has agreed to be bound by them, but it is strongly advisable to require a new user who has just downloaded the app (or an update), or who is about to make a purchase or take out a subscription, to specifically indicate acceptance of the Terms and Conditions (for example, by ticking a box saying “accept”) before proceeding to use the app, as this removes any doubt that the contract has been duly formed.

Already have an app?

If you are unsure of the thoroughness of your privacy policy or terms and conditions for your app and would be interested in a review of your legal documents, please use the form below or contact Oliver directly to discuss your request.

Oliver Williams

Oliver Williams has over twenty five years experience as a solicitor, and has practiced corporate and commercial law in London, in the Cayman Islands and in Hong Kong, where he was a partner with Haldanes, before joining Prospect Law.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.