i. Lan entered into a value-added reseller (VAR) agreement with NetScout to rese
ID: 386168 • Letter: I
Question
i. Lan entered into a value-added reseller (VAR) agreement with NetScout to resell NetScouts software to its customers. i.Lan claimed it purchased the unlimited right to use the software replete with perpetual upgrades and support, whereby it could effectively rent, rather than sell the software to its customers, and pointed to the purchase order to support its claim. NetSource pointed to the VAR agreement and the clickwrap license agreement contained in the software to refute this. The clickwrap license states that "[NetScout's] liability for damages to licensee for any cause whatsoever, regardless of the form of any claim or action, shall be limited to the license fees paid for the licensed product." However, another section states that each party has the right to bring judicial proceedings to enforce its rights under the agreement, and specifically mentions specific performance. i.Lan sought specific performance of the agreement for perpetual upgrades and unlimited support. Is the subject matter of the contract sufficiently unique to warrant specific performance? Explain whyExplanation / Answer
The subject matter mentioned in the contract seems to be unambiguous. The VAR agreement allows the buyer to add features and resell the existing product. i.lan has claimed that it has supported the claims of renting the product rather than reselling thus generating more revenue on a single unit of product. The problem seems to be per unit more generation of revenue after VAR by the i.Lan which is creating dishevel in the minds of Netscout.
The need of Specific performance arises in the case where monetary transactions cannot fulfill the damages and thus the other party has to oblige by it and meet the expectations or the clauses mentioned in the contract originally. It seems i.Lan’s demand for specific performance is valid enough since the clause of the contract hasn’t been met despite its mention in the purchase order.
Net Scout has been unfair in the deal by alleging falsely and thus i.Lan is the candidate who should be considered to extend the Specific performance remedy.
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