How to arrange the delivery of software
The question of choosing a contractual software distribution scheme is far from idle, since it is directly related to tax consequences. This note will help you quickly understand the features of contracts used for software distribution, and make an informed choice.
In most cases, a licensing agreement or an agreement for the delivery of computer programs are usually used as a legal basis for transferring software and receiving payment for it.
Contracts for the provision of information services (for example, with the provision of an access key) or agency contracts are less common.
From the point of view of civil law, the difference between a software supply contract and a software license agreement is in the subject matter of the transaction. Under the supply agreement, the buyer is transferred to the ownership of a copy of the program on a tangible medium, which is considered as a thing. The buyer can freely own and dispose of (including transfer) such media with a copy of software (art. 1270 of the Civil Code of the Russian Federation), however, he can use the program only by writing to the computer memory and applying the limits of the declared functionality RF).
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The subject of a software license agreement is the provision of the right to use software products. A copy of the software at the time of the conclusion of the license agreement may be with the licensee, he can receive it later, both independently and from the licensor or another person - these are details of the execution of the agreement.
In the license agreement, it is important what rights (or rather, how to use the software) are granted to the licensee, for what period and territory. Those. the object of realization here is the right, not the thing.
From the point of view of tax law, the implementation of the right to use programs under a license agreement is exempted from VAT payment (clause 26 of clause 2 of Article 149 of the Tax Code of the Russian Federation), as opposed to selling software as a product under a supply agreement. First of all, the choice of a specific type of contract is connected with this circumstance. You can read more about the VAT exemption in an article previously published in Habré.
Returning to the two remaining types of contract, we note that in both cases they are of an intermediary nature and cannot be used in the licensing chain for the purpose of applying a VAT exemption.
In the first case, the remuneration is paid to the contractor for the service provided for the provision of the access code necessary to work with the software product. The program itself and the rights to it are, as it were, granted for nothing, i.e. free of charge, for example, based on the End User License Agreement (EULA) included in the software distribution.
The agency agreement is not designed to transfer rights to “transit” as many unreasonably believe, except in the case of the conclusion of a licensing 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 more rights cannot be transferred than you yourself have. So commission licensing schemes for software have a significant flaw that can lead to adverse consequences in terms of both civil and tax law.
Pay attention to the terms of the agreement under which you distribute or acquire software. How does it correspond to the actual implementation scheme and your goals? The legal risks that you take on directly depend on this.
In most cases, a licensing agreement or an agreement for the delivery of computer programs are usually used as a legal basis for transferring software and receiving payment for it.
Contracts for the provision of information services (for example, with the provision of an access key) or agency contracts are less common.
From the point of view of civil law, the difference between a software supply contract and a software license agreement is in the subject matter of the transaction. Under the supply agreement, the buyer is transferred to the ownership of a copy of the program on a tangible medium, which is considered as a thing. The buyer can freely own and dispose of (including transfer) such media with a copy of software (art. 1270 of the Civil Code of the Russian Federation), however, he can use the program only by writing to the computer memory and applying the limits of the declared functionality RF).
')
The subject of a software license agreement is the provision of the right to use software products. A copy of the software at the time of the conclusion of the license agreement may be with the licensee, he can receive it later, both independently and from the licensor or another person - these are details of the execution of the agreement.
In the license agreement, it is important what rights (or rather, how to use the software) are granted to the licensee, for what period and territory. Those. the object of realization here is the right, not the thing.
From the point of view of tax law, the implementation of the right to use programs under a license agreement is exempted from VAT payment (clause 26 of clause 2 of Article 149 of the Tax Code of the Russian Federation), as opposed to selling software as a product under a supply agreement. First of all, the choice of a specific type of contract is connected with this circumstance. You can read more about the VAT exemption in an article previously published in Habré.
Returning to the two remaining types of contract, we note that in both cases they are of an intermediary nature and cannot be used in the licensing chain for the purpose of applying a VAT exemption.
In the first case, the remuneration is paid to the contractor for the service provided for the provision of the access code necessary to work with the software product. The program itself and the rights to it are, as it were, granted for nothing, i.e. free of charge, for example, based on the End User License Agreement (EULA) included in the software distribution.
The agency agreement is not designed to transfer rights to “transit” as many unreasonably believe, except in the case of the conclusion of a licensing 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 more rights cannot be transferred than you yourself have. So commission licensing schemes for software have a significant flaw that can lead to adverse consequences in terms of both civil and tax law.
Pay attention to the terms of the agreement under which you distribute or acquire software. How does it correspond to the actual implementation scheme and your goals? The legal risks that you take on directly depend on this.
Source: https://habr.com/ru/post/289690/
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