Critical elements required in entering a contract with google and apple

FOREIGN TRADE UNIVERSITY – HCMC CAMPUSDEPARTMENT OF ECONOMICS AND LAW

-o0o -CRITICAL ELEMENTS

REQUIRED IN ENTERING A CONTRACTWITH GOOGLE AND APPLE

INTRODUCTION TO LAW

Final Assignment – ReportAcademic year: 2022 – 2023

Examiner 1’s signatureExaminer 2’s signature

Invigilator 1’s signatureInvigilator 2’s signature

Lecturer: Tran Thanh Tam (LLM, PhD Candidate)Course code: PLUE111 – ML179

Full name: Nguyen Tran Lien NhiNo.: 36

TABLE OF CONTENTS

1.Context of the report 3

2.Purpose of the report 3

3.Law documents used 3

1.Parties to the contract 4

2.Voluntary consent of the contract 5

3.Purpose and content of the contract 6

4.Form of the contract 7

1 Context of the report

In the wake of COVID-19 and the exponential growth of technology, the adoption of educational apps in teaching and learning has been expedited, which standardizes digital resources for millions of teachers and students (Singer, 2021) This demand has urged many developers to create practical educational apps Mr Duc Trang is a quintessential example in this context He was successful in creating an app enhancing mathematics teaching and learning methods and expectedly plans to commercialize it to be availably used nationwide.

2 Purpose of the report

With this backdrop, the report is to fulfil the following objectives:

i To assist Mr Duc Trang with legal matters in terms of crucial elements to conclude a contract with Google and Apple by specifying the main features of the contract, laws to be applied, and policies of the two corporations;

ii To appositely recommend actions to be taken.

3 Law documents used

To enter into a contractual agreement with Google and Apple regarding the launch and management of the app, abiding by the publicized documents is mandatory: Google Play Developer Distribution Agreement, Apple Developer Program License Agreement, and Apple Developer Agreement All regulations are under the governance and construal of the law of State of California, with its conflict of laws provisions excluded, according to Google and Apple.

In addition, considering the app inventor is located in Vietnam and its use is available nationwide, the report primarily uses Vietnamese laws, including Vietnam Civil Code (2015),

Vietnam Law on Commerce (2005), Vietnam Law on Intellectual Property (2005), Law on E-Transactions (2005), and Circular No 59/2015/TT-BCT.

By applying Vietnamese laws, it is necessary to understand key elements to enter into a contract The establishment of the contract between two parties, in this situation, shall be categorized as a bilateral contract pursuant to Clause 1 Article 402 Code 91/2015/QH13, since each party is responsible for their obligations to each other An offer from the offeror – Google and Apple, and an acceptance from the offeree – Mr Duc Trang, are required for the contract formation In detail, the offeror must express clearly “its intention to enter into a contract and to be bound by such offer made to another determined party or to the public”, as stated in Clause 1 Article 386 Code 91/2015/QH13 In this case, the agreements established by Google and Apple meet this requirement As for Apple, its Apple Developer Program License Agreement and Apple Developer Agreement clearly state its willingness to grant a restricted license to developers to use the Apple Software and Services as part of the program to invent and test the applications in accordance with the terms and conditions outlined Likewise, Google Play Developer Distribution Agreement with its transparent terms and conditions is also regarded as an offer expressing its intention to form a contract with developers and to be bound by such offer For there to be a legal agreement between two parties, an acceptance must be made by Mr Duc Trang in response to the offers; in other words, the “mirror image” rule must be applied Particularly in this case, Mr Duc Trang’s acceptance amounts to paying required fees, which is a one-off payment of $25 for Google and a yearly subscription of $99 for Apple (Patel, 2023); in addition to conforming to all the terms and conditions set forth in their offers Prior to that, for the purpose of launching his app, Mr Duc Trang has to satisfy a precondition – registering for a Developer account and an authentic Payment Profile, enabling him to have his app presented, downloaded, and purchased (if any) Nonetheless, a contract to be formed needs more work to be done, which is elaborated as follows.

1 Parties to the contract

As stated above, the type of contract is the bilateral contract since both parties are obliged to perform duties to each other Generally, in this case, distributors – Google and Apple, and app developer – Mr Duc Trang would be two parties to the contract.

To conclude a contract, two parties must have civil legal capacity and capacity for civil acts pursuant to Civil Code 2015 First, in accordance with Clause 1 and Clause 2 Article 20 Code 91/2015/QH13, citizens eighteen years old or over shall have full capacity for civil acts, excluding circumsctances mentioned in Article 22, Article 23, and Article 24 Code 91/2015/QH13, related to loss of civil capacity, people with difficulty in awareness or control of their own acts, and restriction of civil capacity In the case of Mr Duc Trang, he has graduated from university, thus over eighteen years old; and the question gives no evidence of loss or restriction of civil capacity, or that he experiences difficulty in awareness or control of his acts Accordingly, Mr Duc Trang has full civil capacity.

Second, the Civil Code 2015 recognizes the legal capacity of both individuals and legal entities With a necessity to establish a company, Mr Duc Trang will become one party under his own company Not every organization is a legal entity, so his new company has to satisty the conditions below, according to Clause 1 Article 74 Code 91/2015/QH13.

i It must be lawfully established; in other words, it must be established under the permission of the Government To meet this requirement, Mr Duc Trang has to acquire an enterprise registration certificate (ERC) from the Vietnam’s Ministry of Industry and Trade His legal representative status for the company has to be clarified in this certificate to affirm he is an authorized person, and to validate the contracts Not fulfilling this is equivalent to the invalidity of the contracts, according to Article 142 Code 91/2015/QH13;

ii It is well-structured with a management body;

iii Its properties are independent of or separated from its owner – Mr Duc Trang’s properties;

iv It is able to participate in legal relations independently.

4 Voluntary consent of the contract

The contract would be invalid if free will is absent, meaning both parties are informed about the existence of contracts as well as the rights and obligations pertinent to them A person acts with voluntary consent if his or her acts are with willingness and free from the restraint of another person or circumstance Payment offers, threats, deception, deceptive advertising, emotional appeals, and other similar tactics fall under the wide area of restraint and can all have an effect to some extent (Nelson et al., 2011) Legally, if there is no free will as a consequence of deception, threat, or coercion, the contract is voided under Article 127 Code 91/2015/QH13.

Therefore, to make the contractual agreements valid, Mr Duc Trang has to evince his free will to enter into the contracts, including full consent to the content presented in Google Play Developer Distribution Agreement, Apple Developer Program License Agreement, and Apple Developer Agreement Also, he should ascertain there is no mistake made between the two parties that engenders misunderstandings; meaning that there are only facts, not personal beliefs or assumptions.

5 Purpose and content of the contract

As stated in Article 118 Code 91/2015/QH13: “The objectives of a civil transaction are the interests which the subjects wish to achieve at the time when they enter into such transaction.” The contract must abide by Civil Code 2015 and not be contrary to the law or social morals – not including any materials that are illegal in the Vietnamese context or any content that violates the morality This content prohibition is also mentioned in the distributors’ policies For instance, Google’s Restricted Content refers to child jeopardy,

terrorism-related, cryptocurrencies as some not allowed Therefore, Mr Duc Trang has to thoroughly analyze the policies and offers of the two distributors to guarantee safety for users and success in publishing his app.

Additionally, both parties may reach an agreement based on the terms and conditions set forth by Google and Apple in their offers The rights and obligations are clearly explained in the offers, requiring both parties to follow and perform with a tight conformity to the Vietnamese law, particularly Article 6 Circular No 59/2015/TT-BCT by the Vietnam’s Ministry of Industry and Trade Remarkably, Law on Intellectual Property is necessary for Mr Duc Trang to protect his invention in addition to complying with Google’s and Apple’s terms and conditions on information confidentiality According to Article 50 Vietnam Law on Intellectual Property 50/2005/QH11: “Authors, copyright holders or related right holders may directly file or authorize other organizations or individuals to file applications for registration of copyright or related rights.” Put differently, as Mr Duc Trang created the app with his own innovation and data collected, and differentiated it with the unique utilization of local dialect, he is qualified to be granted a registered copyright certificate, along with Article 9 Vietnam Law on Intellectual Property 50/2005/QH11, which clearly states the right and responsibility of organizations and individuals for the protection of intellectual property rights Besides, offers of both Google and Apple mention their privacy policies related to the right to be protected in terms of information, and the obligation to protect the information of users.

Furthermore, some other key elements that should be included in the contract are sales terms and conditions, duration in force, promotional rights, trademark licensing, applied geographical area, performance of rights and obligations, and terminating circumstances (Moore & Wigmore, 2018) All are manifest in the Google’s and Apple’s agreements, in addition to warranties and limitation of liability that should also be complied with (Google, n.d.) (Apple, n.d.).

6 Form of the contract

The form of the contracts is an integral part for them to be valid According to Clause 1 Article 119 Code 91/2015/QH13, civil transactions must be established by means of verbalization, writing, or specific acts To be more specific, the form of the contracts Mr Duc Trang should follow Clause 2 Article 24 Vietnam Law on Commerce 36/2005/QH11, which states: “For types of contracts for purchase and sale of goods, which, as provided for by law, must be made in writing, such provisions must be complied with.” Contract form should be pertinent to the purpose and content of the contract Particularly, Mr Duc Trang’s contracts with Google and Apple are legally made in written form or other forms equivalent to written form In this case, the contracts are supplied via internet-based communication.

7 Governing law

Since both Google and Apple are headquartered in California, and their offers clearly state that all statutes are construed and governed by the law of State of California, it is understandable that this is the law applicable for the agreements.

This is a commercial activity, particularly entering into a commercial contract, hence the Vietnam Law on Commerce (2005) and Civil Code (2015) is applicable in this case The use of the Vietnam Law on Intellectual Property (2005) is also a integral part, as it guarantees Mr Duc Trang’s rights to his own intellectual property and protects him as well as his invention against any disputes (if any) A more specific law to be applied is Vietnam Law on Transactions (2005) and Circular No 59/2015/TT-BCT on managing activities related to E-Commerce through technology-based apps As the contracts are supplied via online communication, it is noteworthy that according to Article 34 and Article 38 Vietnam Law on E-Transactions 51/2005/QH11, the legal validity of an electronic contract and any notice in message form is still recognized by the law Therefore, the validity of the contracts between Mr Duc Trang and Google, Apple is ensured As for Circular No 59/2015/TT-BCT, it

stipulates that the Ministry of Industry and Trade has registration requirements for traders and organizations possessing mobile apps that sell items and offer e-commerce services in Article 4; and they have responsibilities which are stated in Article 5 and Article 6 Besides, the procedure for notice and registration of mobile apps is clarified in Chapter 2 Circular No 59/2015/TT-BCT; hence, Mr Duc Trang is required to follow the circular to successfully launch the app.

CONCLUSION & RECOMMENDATIONS

1 Conclusion

In summary, the process of concluding a contract with Google and Apple is totally many-sided with numerous steps and considerations, in addition to a great involvement of manifold laws of both Vietnam and the US In the contract, Google and Apple are the offerors with their publicized agreements In order to express his acceptance to enter into a contract, Mr Duc Trang has to accept all the terms and conditions set forth and perform required acts – in this case, paying fees Should he hope to launch his app successfully, there is a call for his meticulous research and analysis with a multidimensional perspective for the sake of preventing himself or his company from violating laws or Google’s and Apple’s terms and conditions Therefore, he must abide by the aforementioned laws to sign a contract with appropriate features regarding the parties, voluntary consent, purpose, content and form of the contract.

8 Recommendations

For the success of the formation of the contract to be guaranteed, there are several recommendations for Mr Duc Trang:

i He should acknowledge the procedure to register for a Developer account and a Payment Profile to be able to publish the app and be financially successful with it.

ii When signing the contracts, it is necessary to carefully make sure there is few or no mistakes that can lead to misunderstanding between two parties.

iii Analyzing the agreements that have been publicized beforehand is highly recommended so that there is no likelihood the contract contradicts the law or social morals, and the content to be launched abides by the policies of the distributors.