party vendors are not acting on X’s behalf. X notes that:
– the third party vendors have primary responsibility for fulfilment. They pick
and are responsible for shipping the requested hardware;
– the warranties and end-user agreements generally ensure that the third party
vendors are known to the customer and establish their responsibility for the
acceptability of the hardware; and
– X has no return or other back-end inventory risk. Even though X’s customers
will frequently initiate and send returns to X, substantially all of X’s return
terms with its customers are mirrored in the contracts between X and its
vendor partners.
Third party software licences X similarly concludes that it does not control the third party software licences
before they are transferred to its customers and therefore that it is an agent for
those specified licences.
X’s conclusion is based on the following factors.
– X does not have a pre-purchased pool of licences that it can resell.
– X does not obtain a master copy of the licensed software and cannot
generate or grant licences or keys for a customer independently of the third
party software vendor. It is the third party software vendor that transfers a
copy of the software to the customer, provides the key necessary to register
the licence directly to the customer and enters into an end-user licence
agreement with the customer that grants the licence to the customer.
X further concludes that the software licences in its contracts do not exist
until customers issue a purchase order and execute the applicable end-user
licence agreement with the third party software vendor. Therefore, X concludes
that it does not control the software licences before they are transferred to
its customers.
Example 9 – Entity is a principal in website sales Company Y operates a website on which it advertises and showcases for sale
a wide variety of consumer products. For a significant portion of its sales,
customers’ orders placed with Y are shipped directly from the supplier to the
customer. Y does not take title to or possess any inventory of these consumer
products at any point.
When a customer places an order, Y notifies the vendor and provides it with
the appropriate customer shipping information – i.e. where to deliver the
product. Y charges the customer the advertised price of the product (which Y
established) and then pays the vendor the specified unit price under the vendor