Submitted: April 5, 2019
Defendant Mediamath, Inc.'s Motion for Judgment on the
R. Wolcott, Esquire, Connolly Gallagher LLP, Newark,
Delaware, Attorneys for Plaintiff.
Matthew P. Ward, Esquire, Nicholas T. Verna, Esquire, Womble
Bond Dickinson (US) LLP, Wilmington, Delaware, Usher
Winslett, Esquire, Of Counsel (pro hac vice), Winslett
Studnicky McCormick & Bomser LLP, New York, New York,
Attorneys for Defendant.
L. SCOTT, JR., JUDGE
action arises out of a claim for breach of contract.
Plaintiff Tibco Software Inc., ("Tibco") filed a
complaint with this Court on July 9, 2018, alleging that
Defendant Mediamath, Inc., ("MMI") breached a
Master Service Agreement ("Agreement") in failing
to pay for services rendered.
August 2014, MMI and Intel Services entered into the
Agreement, wherein Intel Services agreed to provide certain
information, technology, products, services and support to
MMI for an established fee. On the same date, MMI and Intel
Services executed an Order Form for such services, which
provides an end date of December 31, 2017. In September
2015, Tibco acquired the assets of Mashery -including the
Agreement - from Intel Corporation.
August 2014 and December 2017, Intel Services, during its
relevant time period, and Tibco provided services under the
Agreement to MMI as specified on the Order Form. The
Agreement provides that MMI "must pay all fees as
specified on the Order Form, but if not specified then within
30 days of receipt of an invoice." The following
line states that the Agreement "contemplates one or more
Order Forms for the Mashery Service, which Order Forms are
governed by the terms of this agreement." Additionally, the
Order Form provides that "[a] 11 payments are due on a
net 30 basis and are subject to a 1.5% late fee."
January 9, 2018, Tibco sent an invoice to MMI in the amount
of $321, 187.46 ("Invoice"). Thirty days later, on
February 8, 2018, MMI had not paid the Invoice. Thereafter,
on February 12, 2018, Tibco sent a demand letter to MMI
requesting payment. At present, the Invoice remains unpaid.
alleges that it has been damaged by MMI's failure to pay
the Invoice in accordance with the terms of either the Work
Order or the Agreement. Tibco contends that such failure to
pay entitles it to compensation in the amount of the unpaid
Invoice plus pre- and post-judgment interest accruing at the
contractual rate of 1.5% per month as of February 8, 2017, as
well as costs and other such relief the Court deems just.
answer, MMI asserted a counterclaim seeking a declaratory
judgement that the Agreement caps MMI's liability at zero
dollars. Specifically, MMI refers to a provision in the
Agreement that provides "neither party's aggregate
liability arising out of or related to this agreement
(whether through indemnification, in contract, tort or
otherwise) will exceed the actual amount paid by [MMI] within
the 12 months preceding the event that gave rise to the
liability." Both parties agree that the "event
that gave rise to the liability" is the non-payment of
the Invoice allegedly due on February 8, 2018. But MMI
reasons that because "the actual amount paid by [MMI]
within the 12 months preceding" that date is zero
dollars, it cannot be held liable for the Invoice amount. MMI
moves for judgment on the pleadings on the same grounds.
opposes the motion for several reasons. First, Tibco argues
that without the benefit of discovery, MMI's request for
judgment on the pleadings based on the limitation of
liability provision in the Agreement should be denied at this
early stage. Next, Tibco claims that the liability limitation
provision is unenforceable under Delaware law as an
unreasonable provision that leads to an absurd result. Tibco
additionally submits that to interpret the liability
limitation provision as a bar against recovery based on a
breach by the party invoking the clause runs contrary to
Delaware's objective theory of interpreting contracts.
Tibco's final argument challenges MMI's understanding
of the ...