Data

Date:: 25-03-2015
Country:: Netherlands
Number:: C/16/364668 / HA ZA 14-217
Court:: Rechtbank Midden-Nederland
Parties:: Corporate Web Solutions v. Dutch company and Vendorlink B.V.

Keywords

SCOPE OF CISG – SOFTWARE LICENSE AGREEMENT – CISG APPLICABLE

VALIDITY OF CONTRACT CLAUSE PROHIBITING TRANSFER OF LICENSE - MATTER EXCLUDED FROM CISG (ART. 4 CISG)

Abstract

A Canadian company and a Dutch party entered into a software license agreement. As the Dutch party, later on, transferred the software to another company, the Canadian company brought an action against it alleging breach of the license agreement terms and conditions.

The Court had to decide whether the license agreement was governed by CISG. After recalling that both the Netherlands and Canada are parties to the Convention, the Court observed that CISG does not provide a definition neither of the notion of 'sales contract' (whose main elements can still be deduced by Arts. 30 and 53 CISG) nor of the notion of ‘goods’. However, taking into account the Convention’s aim to remove legal barriers to trade through establishing a uniform set of rules, the Court reached the conclusion that a broad definition of ‘goods’ must be assumed in the framework of the uniform text. Thus, the Court found that, even if the software is not recorded on a tangible medium such as DVDs, CDs or USB sticks, nevertheless it is to be regarded as “goods” within the meaning of Art. 1 CISG.

The Court then turned to consider whether the software license agreement could be considered a sales contract for the purposes of CISG. Relying on Art. 8 CISG, the Court noted, first of all, that the description of the agreement is not decisive, but rather the intent of the parties or the understanding of a reasonable person with regard to the contract. The Court also considered that the buyer’s use of the software was not limited in time and that the payment by the buyer was made in one single occasion and not through monthly installments. As a result, in the Court’s view, the agreement between the parties could be qualified as a sales contract under the Convention. However, the issue of the validity of the clause contained in the contract prohibiting transfer of license could not be resolved on the basis of CISG (Art. 4(a)), but instead on the basis of the otherwise applicable law (i.e., Dutch law). On this premise, the Court ruled that the buyer’s transfer of the software did not violate the parties’ agreement.

Fulltext

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Source

Original in Dutch:
- available at http://uitspraken.rechtspraak.nl/}}