Everyone is familiar with the oft-times repeated example of chutzpah: The offspring who kills his parents and then begs the court for mercy on the grounds that he is an orphan. The example sprang to mind when reading the recent decision in Tibco Software v. Mediamath, C.A. No. N18C-07-066 CLS (Del. Super. July 10, 2019), wherein Judge Calvin Scott denied a motion for judgment on the pleadings on the grounds that the defendant’s proffered interpretation of a liability limitation provision in a master service agreement was unreasonable.

The facts as presented in the opinion were not complicated. Tibco Software’s predecessor and Mediamath entered into a master service agreement whereby Tibco’s predecessor would provide information, technology, products, services and support to Mediamath for an established fee. Tibco later acquired the agreement. Between August 2014 and December 2017, Tibco or its predecessor provided services under the agreement to Mediamath as specified in an order form for such services. The agreement provided that Mediamath was to pay all fees as specified on the order form, but if not specified, within 30 days of receipt of an invoice. In January 2018, Tibco sent an invoice to Mediamath for $321,187.46. The invoice remained unpaid for more than 30 days. After making a demand for payment, Tibco instituted this action against Mediamath for breach of contract.

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