Judge P. Kevin Castel
Under a Professional Services Agreement (PSA) retailer J&R hired Business & Decision North America Inc. (B&D) to configure and install Microsoft's Dynamics AX 2009 ERP software connecting J&R's various systems. J&R's breach suit alleged B&D misrepresented facts. B&D's successor Business & Decision North America (PA) Inc. sought dismissal arguing that the PSA limited J&R to specific performance. The court found B&D waived the PSA's limited remedy provision by selling its Dynamic AX practice to InterDyn AKA, and losing its "Gold Certification" from Microsoft. J&R reasonably relied on B&D's misrepresentations that Dynamics AX 2009 would meet its needs and that the project would be completed by a certain date. However, certain of J&R's negligent misrepresentation claims duplicated its breach claim. Because the software agreement under which J&R licensed Microsoft's Dynamics AX 2009 software package through B&D provided for Point of Sale (POS) functionality, any negligent misrepresentations about POS functionality were part of the express terms of the contract, and did not adequately allege an independent tort claim concerning POS functionality.