How to arrange software delivery

The issue of choosing a contractual software distribution scheme is far from idle, since it is directly related to the tax consequences. This note will help you quickly understand the features of the contracts used for software distribution and make an informed choice.

In most cases, a licensing agreement or a contract for the supply of computer programs is usually used as the legal basis for transferring software and receiving payment for it .

Less common are contracts for the provision of information services (for example, with the provision of an access key) or agency contracts.

From the point of view of civil law, the difference between a software supply agreement and a software license agreement in a transaction subject. Under the supply contract, the buyer is given ownership of a copy of the program on tangible media, which is considered as a thing. The buyer is free to own and dispose (including transfer) of such media with a copy of the software (Article 1270 of the Civil Code of the Russian Federation), however, he can only use the program by writing to the computer's memory and applying the limits of the declared functionality (Article 1280 of the Civil Code) RF).

The subject of a software license agreement is the provision of the right to use software products. At the time of conclusion of the license agreement, the copy of the software may be held by the licensee, he can obtain it later either independently, or from the licensor or another person - these are already details of the execution of the agreement.

In a license agreement, it is important what rights (or rather, how to use the software) are granted to the licensee, for how long and territory. Those. the object of realization here is law, not a thing.

From the point of view of tax law, the exercise of the right to use programs under a license agreement is exempt from VAT (paragraphs 26, paragraph 2, Article 149 of the Tax Code), in contrast to the sale of software as a product under a supply agreement. With this circumstance, in the first place, the choice of a specific type of contract is connected. For more information about the VAT exemption can be found in previously published Habré article .

Returning to the two remaining types of contract, we note that in both cases they are intermediary in nature and cannot be used in the licensing chain for the purpose of applying VAT exemption.

In the first case, the remuneration is paid to the contractor for the service provided by providing an access code necessary for working with a software product. The program itself and the rights to it are, as it were, granted for free, i.e. free of charge, for example, under the End User License Agreement (EULA) included in the software distribution.

An agency agreement is not designed to transfer rights in transit at all, as many unreasonably consider, with the exception of the case of concluding a license agreement on behalf of the licensor. In the case when the intermediary acts on his own behalf (commission agreement), the principle is violated according to which it is impossible to transfer more rights than you own. T.O. commission licensing schemes for software have a significant flaw, which can lead to adverse consequences in terms of both civil and tax law.

Pay attention to the terms of the contract under which you distribute or acquire the software. How much does it correspond to the actual implementation scheme and your goals? The legal risks that you assume directly depend on this.