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In a recent landmark ruling (Kompakwerk GmbH v. LivePerson Netherlands B.V., September 4, 2024, [2024] EWHC 2278 (Comm)<\/mark><\/a>), London\u2019s High Court of Justice held that time-limited SaaS subscriptions cannot be regarded as sales contracts. As a result, resellers of such licenses are not entitled to the protections afforded to commercial agents, which apply only to intermediaries involved in the \u201csale of goods.\u201d<\/p>\n\n\n\n This decision, grounded in Directive 86\/653\/EEC<\/mark><\/a>, is worth close consideration by legal and industry professionals, as it offers a valuable extension to the established interpretation given by the Court of Justice of the European Union (CJEU).<\/p>\n\n\n\n Contractual relationships between software editors and distributors vary widely due to the multifaceted nature of these partnerships (including marketing and pre-sales, technical support, remuneration models\u2026), modes of software delivery (physical copies, downloads, or SaaS), as well as the legal relationships claimed (commissioned distributors, agents, resellers, referrers, etc.). As we will see, the duration of the license granted to the final client should also influence the terms of the distribution contract.<\/p>\n\n\n\n When a distributor is involved in negotiating and\/or concluding a license contract between the software vendor and the end customer, the question often arises of whether this intermediary can qualify as a commercial agent. A question that is both relevant and significant:<\/p>\n\n\n\n In 2021, the Court of Justice of the European Union (CJEU) ruled in a case involving a reseller of perpetual software licenses, determining that the reseller could indeed be considered a commercial agent (CJEU, September 16, 2021, C-410\/19<\/mark><\/a>, The Software Incubator Ltd v. Computer Associates<\/em>).<\/p>\n\n\n\n The CJEU held that software can be classified as \u201cgoods\u201d because it has commercial value and is subject to commercial transactions. In doing so, \u201cgoods\u201d effectively became synonymous with \u201cthing,\u201d which can be either tangible or intangible.<\/p>\n\n\n\n\n
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The CJEU\u2019s Position on Perpetual Software Licenses<\/h1>\n\n\n\n