Submitted: November 18, 2019
Plaintiffs Motion for Summary Judgment Denied.
R. Wolcott, Esquire, Connolly Gallagher LLP, Newark,
Delaware, Attorney for Plaintiff.
Matthew P. Ward, Esquire, Nicholas T. Verna, Esquire, Womble
Bond Dickinson LLP, Wilmington, Delaware, Usher Winslett,
Esquire, Of Counsel (pro hac vice), Winslett Studnicky
McCormick & Bomser LLP, New York, New York, Attorneys for
HONORABLE CALVIN L. SCOTT, JR. JUDGE.
the Court is Plaintiff Tibco Software Inc.'s
("Plaintiff) Motion for Summary Judgment. For the
following reasons, Plaintiffs motion is DENIED.
August 2014, Defendant Mediamath, Inc.
("Defendant") and Intel Services entered into a
Master Service Agreement ("Agreement"), wherein
Intel Services agreed to provide certain information,
technology, products, services, and support to Defendant for
an established fee. On the same date, Defendant and Intel
Services executed an Order Form for such services, which
provides an end date of December 31, 2017. In September
2015, Plaintiff acquired the assets of Mashery-including the
Agreement-from Intel Corporation.
the Agreement, Defendant was required to "pay all fees
as specified on the Order Form, but if not specified then
within 30 days of receipt of an invoice."On January 9,
2018, Plaintiff sent an invoice to Defendant in the amount of
$321, 187.46 ("Invoice"). Defendant did not pay the
Invoice within 30 days of Defendant's receipt of the
Invoice. At present, the Invoice remains unpaid.
filed a motion for summary judgment, arguing that there are
no genuine issues of material fact and that it is entitled to
judgment as a matter of law. Plaintiff argues that the three
elements of its breach of contract claim are proven by
undisputed facts. Additionally, Plaintiff requests this Court
grant summary judgment on Defendant's counterclaim
because this Court previously held unenforceable the
liability limitation provision that Defendant relies on in
response, Defendant explains that this Court did not find the
liability limitation provision unenforceable; instead, this
Court found the liability limitation provision remained
"an issue of material fact." Based on the
Court's previous finding, Defendant argues that there are
genuine issues of material fact. Defendant further argues
that the Court still must decide whether to hold Plaintiff
accountable for its failure to invoice Defendant for over 30
reply, Plaintiff urges the Court to grants its motion for
summary judgment because there are no genuine issues of
material fact and Plaintiff is entitled to judgment as a
matter of law. Plaintiff argues that Defendant impermissibly
used parol evidence to show that the liability limitation
provision was revised three times during contract
negotiations. Finally, Plaintiff argues that it breached no
legal or contractual obligation by failing to invoice
Defendant every quarter.