Lan entered into value-added reseller agreement

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Reference no: EM132212411

Lan entered into a value-added reseller (VAR) agreement with NetScout to resell NetScout’s 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 why.

Reference no: EM132212411

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