License Agreement And Cisg

Similarly, the CISG does not specifically address issues arising from the fact that the purchaser also acquires intellectual property rights to the software as part of a software sales or licensing contract. For example, a buyer wants some kind of guarantee that his use of the software does not infringe any third-party intellectual property rights. However, it would be difficult to involve this type of guarantee in the general provisions of the CISG. Similarly, the seller is not required to guarantee that he does not grant intellectual property rights during the term of the licence that would affect the enjoyment of those rights by the taker. E-commerce is clearly an important issue in international trade. As more and more transactions between the parties are conducted electronically in all countries of the world, there is an increasing urgency to put in place clear, safe and easy-to-enforce rules for international e-commerce contracts. The difficulties encountered in applying the GSIS to e-commerce transactions and whether it is doubtful that the CISG will apply to certain e-commerce transactions mean that the importance of the CISG as an instrument for regulating international sales contracts is diminishing. E-commerce-related companies are increasingly striving to exclude the application of the ICSG to their contracts in order to avoid any uncertainty related to its application [page 146]. [82] There is also a tendency for parties to regulate e-commerce transactions themselves, first concluding agreements on the basis of the exploitation of e-commerce transactions between them. [83] Under the GSIS, no contract is entered into unless the parties have indicated their intention to enter into a binding agreement.

[50] Are computers capable of intending to do so? Otherwise, can a computer be considered an agent for the man who programmed it, so that the actions of the computer serve to indicate the programmer`s intention to be bound by the contract? In addition, some commentators argue that the CISG should apply to software licensing agreements, since the manufacturer retains ownership of the product, but that the transaction is equivalent to a sale on all other items. The customer pays a one-time fee for the license and the licence is granted for an indeterminate period. [8] As far as the customer is concerned, he „purchased“ the software. This approach has been adopted by a U.S. court under the U.S. Trade Code (UCC), which, like the CISG, applies to the sale of goods across national borders. In that case, which concerned the licensing of a software, it was found that „the contractual price of a lease is as high as the sale price of the same item, that the transaction is comparable to a sale and is covered by the UCC.“ [9] On this basis, it was proposed that the CISG support the conclusion that licensing agreements can constitute sales contracts, provided that the licence price is identical to the purchase price of the software. [10] However, there is no direct support for the use of such a test in the CISG itself.