“Alternate Installations In the event that a designated computer (see addendum A) is destroyed or replaced, SLS shall Deliver a substitute copy of the System, to the Customer’s central location, within 72 hours of notification by the Customer. Maintenance A. SLS agrees to offer maintenance for one (1) year periods by submitting an invoice (in accordance with this Agreement) not less than 60 days prior to termination of the existing maintenance period. Customers may purchase maintenance offered by SLS for one year periods by notifying SLS and prepaying SLS the then current annual price for such maintenance, at least thirty (30) days prior to the date each such one year maintenance period is to start. B. SLS maintenance duties are only: (i) to correct any defects, including software bugs, in the System Programs which cause the System Programs not to operate in accordance with the description of the Systems function in the documentation. (ii) to provide reasonable written and telephone consultation pertaining to operation and application of the System. (iii) to provide modifications to the System Programs which are designated by SLS as “internal improvements” definition herein, (Modifications and/or enhancements to the Systems routines that are made available, at no additional licence fee, to customers whose System maintenance payments are current) and is made generally available to other customers at no additional licence fee. Customer agrees to install such modification or internal improvement within 45 days of receipt. (iv) to provide updates to the System documentation within 30 days of the date updates to System are made available to customer.”
““My Lords, I will say at once that I prefer the approach of the judge. But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds[1971] 1WLR page 1381 , 1384-1386 and Reardon Smithline Limited v Yngvar Hansen-Tangen D[1976] 1WLR 989 , is always sufficiently appreciated. The result has been subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of “legal” interpretation has been discarded. The principles may be summarised as follows. (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation at which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact” but this phrase is, if anything, an understated description of what the background may include subject to the requirements that it should be reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some ways unclear. But this is not the occasion on which to explore them.” (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation at which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact” but this phrase is, if anything, an understated description of what the background may include subject to the requirements that it should be reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some ways unclear. But this is not the occasion on which to explore them.”
“Thus in my view clause 10 has the effect contended for by the appellants in their alternative submission. The respondent’s obligation continues until the appellants and their customers no longer require and are willing to pay for the support and maintenance services. Mr Barnes submits that this is a wholly uncommercial reading of the clause because the number of customers requiring the service may dwindle even to one, yet the respondent will be obliged to maintain the service facility for even one. I can see that this might become uneconomical for the respondents but it is not the whole picture and this fact alone does not make the interpretation uncommercial. As any user of electronic equipment knows, an undertaking to provide after sales service for an extended period can be strong inducement to buy, and the commercial value to Atlas/Harbinger of promising support for an indefinite period as a standard term of their sales package must have been very great. In those circumstances they are not released from their undertaking merely because it may become uneconomical for them to perform it. Moreover the risk must have been apparent when the agreement was made. In the event I wonder how unlikely it is, given the nature of the goods in question, that there will in fact be a continuing long term demand for support and maintenance of the software package which is now out of production and must, if it is not already, become obsolescent.”
“Having found out from Mr Passey the current position between the parties in relation to rates I had to deal with the practicalities of making payments to KDP. I discovered that previously payments of fees were made to KDP as and when they were received from the end user, which resulted in payments being made on a monthly or even more regular basis. This is clearly uneconomical from a clerical point of view. Accordingly I agreed with Mr Passey that KDP would be paid quarterly from that point onwards. I do not recall the exact date of the agreement but believe it was reached in a phone call in early 2007. I also agreed (I believe in the same phone call) that SoftLanding’s fees for all maintenance transactions would revert to 75% and 50% of the receipts for SET/TURN and DOCUMENTOR respectively….”
“a grant or purported grant, which may be express or implied, of the right to do the act complained of” (see the CBS Songs case[1988] 1 AC 1013 , at page 1054C, per Lord Templeman). MCA's copyright only entitled it to a territorial right within the UK, but it matters not that (as was probably the case) CRL's authorisation was given outside the UK, since it is also a tort to authorise from outside the UK the commission of infringing acts within it … and CRL's infringing activities were carried on within the UK.”
“The tort of authorisation created by section 16(2) of the 1988 Act is a quite separate tort. It is complete when the authorisation is effected; it is not a tort which is only completed once an infringing act is carried out in pursuance of the authorisation.”