Dispute over the delivery of software
We continue the review of arbitration practice on disputes arising from the commercial activities of IT companies. Today we look at the case with the delivery of software.
The purchaser of the software (claimant) appealed to the arbitration court with the requirement to oblige the seller (defendant) to fulfill the conditions of the software supply contract , to recover the penalty and damages.
The reason for going to court was the delivery of software that does not correspond in its characteristics to the software specified in the annex to the contract. As a result of the installation of the wrong software on the equipment of the customer, a software failure occurred. The use of the supplied software caused incorrect application operation, integrity violation, data corruption or loss.
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As a result, the arbitration court ordered the seller to deliver and install the software in accordance with the contract, refused the rest of the claim. Continued under the cut.
1. The contract submitted to the court is mixed, containing the elements of the contract for the supply of computer programs and the contract of compensated services ( contract for the introduction of software ).
2. In accordance with paragraph 4 of article 454 of the Civil Code of the Russian Federation, the conditions provided for in paragraph 1 “General provisions on sale and purchase” of chapter 30 apply to the sale of property rights, unless it follows otherwise from the content or nature of these rights.
3. According to Article.456 of the Civil Code of the Russian Federation, the seller is obliged to transfer to the buyer the goods stipulated in the contract of sale. Unless otherwise provided by the contract of sale, the seller is obliged simultaneously with the transfer of the thing to transfer to the buyer its accessories, as well as the related documents (technical passport, quality certificate, operating instructions, etc.) provided for by law, other legal acts or contract.
The list of works and the list of supplied equipment and software is defined in the annex to the contract, however, in fact, another program was supplied and installed to the plaintiff.
4. The arguments of the defendant that the claimant accepted the programs stipulated in the contract (rights to the software) without remarks and claims for the assortment and deficiencies, which follows from the act of acceptance and acceptance of the rights (licenses) to use the software are untenable.
Verification of the functional properties of the software could be carried out only with its direct use and application. Therefore, the acceptance by the claimant of the goods does not relieve the defendant from the delivery of goods of adequate quality. In addition, given the peculiarity of the goods supplied, the plaintiff is entitled to make a complaint for two years directly using it, on the basis of art. 477 of the Civil Code.
1. The dispute in question arose in connection with the delivery of software in a different configuration. However, there are cases of delivery of simply poor-quality software. In this case, you can also refer to the provisions of Art. 454 and 477 of the Civil Code of the Russian Federation on the quality of the goods and the timing of claims for its shortcomings.
2. It is necessary to pay attention to the type of contract used. In this case, the court qualified the contract for the provision of software and their installation as a mixed supply contract and paid services. A license agreement , in contrast to a software supply agreement, provides the licensor with greater protection against claims to software quality.
Therefore, it is necessary to pay due attention to the choice of the type of contract and the elaboration of conditions on guarantees and liability for the computer programs and database provided.
3. The contract should agree on the terms of acceptance of software with the condition of its testing, and then sign the act of acceptance and transfer. Otherwise, the act does not close questions on complaints about the quality of programs.
Resolution of the Federal Antimonopoly Service of the Moscow Region No. KG-A40 / 5005-11-P dated June 14, 2011.
Plot of affairs
The purchaser of the software (claimant) appealed to the arbitration court with the requirement to oblige the seller (defendant) to fulfill the conditions of the software supply contract , to recover the penalty and damages.
The reason for going to court was the delivery of software that does not correspond in its characteristics to the software specified in the annex to the contract. As a result of the installation of the wrong software on the equipment of the customer, a software failure occurred. The use of the supplied software caused incorrect application operation, integrity violation, data corruption or loss.
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As a result, the arbitration court ordered the seller to deliver and install the software in accordance with the contract, refused the rest of the claim. Continued under the cut.
Motivation of the court decision
1. The contract submitted to the court is mixed, containing the elements of the contract for the supply of computer programs and the contract of compensated services ( contract for the introduction of software ).
2. In accordance with paragraph 4 of article 454 of the Civil Code of the Russian Federation, the conditions provided for in paragraph 1 “General provisions on sale and purchase” of chapter 30 apply to the sale of property rights, unless it follows otherwise from the content or nature of these rights.
3. According to Article.456 of the Civil Code of the Russian Federation, the seller is obliged to transfer to the buyer the goods stipulated in the contract of sale. Unless otherwise provided by the contract of sale, the seller is obliged simultaneously with the transfer of the thing to transfer to the buyer its accessories, as well as the related documents (technical passport, quality certificate, operating instructions, etc.) provided for by law, other legal acts or contract.
The list of works and the list of supplied equipment and software is defined in the annex to the contract, however, in fact, another program was supplied and installed to the plaintiff.
4. The arguments of the defendant that the claimant accepted the programs stipulated in the contract (rights to the software) without remarks and claims for the assortment and deficiencies, which follows from the act of acceptance and acceptance of the rights (licenses) to use the software are untenable.
Verification of the functional properties of the software could be carried out only with its direct use and application. Therefore, the acceptance by the claimant of the goods does not relieve the defendant from the delivery of goods of adequate quality. In addition, given the peculiarity of the goods supplied, the plaintiff is entitled to make a complaint for two years directly using it, on the basis of art. 477 of the Civil Code.
Comments on the dispute
1. The dispute in question arose in connection with the delivery of software in a different configuration. However, there are cases of delivery of simply poor-quality software. In this case, you can also refer to the provisions of Art. 454 and 477 of the Civil Code of the Russian Federation on the quality of the goods and the timing of claims for its shortcomings.
2. It is necessary to pay attention to the type of contract used. In this case, the court qualified the contract for the provision of software and their installation as a mixed supply contract and paid services. A license agreement , in contrast to a software supply agreement, provides the licensor with greater protection against claims to software quality.
Therefore, it is necessary to pay due attention to the choice of the type of contract and the elaboration of conditions on guarantees and liability for the computer programs and database provided.
3. The contract should agree on the terms of acceptance of software with the condition of its testing, and then sign the act of acceptance and transfer. Otherwise, the act does not close questions on complaints about the quality of programs.
Judicial act
Resolution of the Federal Antimonopoly Service of the Moscow Region No. KG-A40 / 5005-11-P dated June 14, 2011.
Source: https://habr.com/ru/post/291376/
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