License Agreements And Cisg

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] [26] See CISG Advisory Council „Contracts for the Sale of Goods to be Manufactured or Produced or Produced and Mixed Contracts (Article 3 cisg) “ CISG-AC Opinion 4 (June 18, 2005). [22] Kreisgericht Bern-Lampen, 29 January 1999 CISG-online nr. 701 (the last time called on 26 June 2005), rightly criticized by Frederike Schofer „On the applicability of the Right of Sale of the United Nations to Enterprise Supply Contracts“ International Commercial Law 2003, 118-21. It is clear that the CISG will not apply to e-commerce sales to consumers and it is doubtful at best that the CISG applies to software licensing contracts, the sale of custom software and the sale of electronic software. In determining the applicability of the GSC, there are significant difficulties in determining the locations of business or in entering into a contract between the parties.

And the application of many provisions of the CISG to electronic contracts is problematic. As a result, the CISG is not well suited to the regulation of electronic sales contracts. The convention also governs the interpretation of the parties` submissions and their treaties to Article 8, taking into account all the circumstances and extrinsious evidence of those interpretations. There is therefore no „simple rule of service“ of national law applicable to a CISG contract. „Merger clauses“ are also likely to be interpreted, which could lead to a more restrictive understanding of such a clause than its clear meaning suggests. Article 9 characterizes international uses, albeit on the basis of unspoken agreements. While it is possible to develop arguments in favour of the possibility of including software licensing agreements within the ICSG, it is possible that a court that will be asked to rule on the issue may realize that this is not the case. This is particularly the case when software vendors contribute to the use of licensing agreements to limit how customers can use software. [11] The application of increasingly restrictive conditions in licensing agreements suggests that the customer acquires only limited rights to the software and that the transaction cannot be characterized as a „sale“. [Page 124] In the case of e-commerce transactions, this requirement is generally undisputed. Electronic sales contracts are still sales contracts; they are no different from contracts with more traditional methods. However, one of the most important sectors of e-commerce is the sale of software online and, in the case of software, a „sales contract“ cannot in fact be a sales contract, but a licensing agreement.