software eula
Is a EULA without clickwrap binding?
<p>I'm making an android app and I don't want to bother the user with a EULA popup when they first start the app.
Would it be enough to make a link to the EULA (in an easy to find place in the app) and on the description page of the google play store?</p>

<p>The relevant consideration is whether you have provided adequate notice of the license terms, and whether the customer has manifested assent to those terms. It is not sufficient for it to be somehow possible to see the terms. In <a href="https://www.law.unlv.edu/faculty/rowley/Specht.pdf" rel="nofollow">Specht v. Netscape, 306 F.3d 17</a>, the company put a link to license terms "on the next scrollable screen". The court was "not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms". The salient characteristic of that agreement is that customers were "responding to an offer that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms." It might have been possible for a customer to guess that there was a license agreement because the download link did not position the scroll bar at the very bottom of the page, but really, who pays attention to the scroll bar especially when there is usually a lot of junk at the bottom. Coupled with the overall presentation of the product as "download free software now one click !!!", nothing notified customers that there was an EULA.</p>

<p>Another relevant case is <a href="http://www.leagle.com/decision/In%20FDCO%2020120104780/KWAN%20v.%20CLEARWIRE%20CORPORATION" rel="nofollow">Kwan v. Clearwater</a>. In this case, the legal issue is whether there would be a trial at all, and the court determined that there would be since there were matters of fact to resolve, prominently whether plaintiffs had agreed to forgo litigation in favor of arbitration. Again, the court found that there was inadequate notice of the TOS: defendant provided information that could lead to seeing the TOS, but simple possibility of finding is not enough. There was no persuasive evidence that plaintiff had actually assented to the terms. In this case, plaintiff was presented with an opportunity to press "I accept terms" but did not do so (plaintiff testified that she declined to do so). </p>

<p>So the main concern would be whether the customer has legally-easy notice, and a bullet-proof means of agreeing (i.e. actually requiring an "I agree" button"). You would need to pay an attorney to give a legal opinion as to whether your plan makes satisfies the "notice" requirement and the "manifest agreement" part in the way a click-wrap agreement does, or you could decide on your own, given these considerations and maybe cases cited in these two rulings.</p>
