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My software product was invited to be part of a catalog of a software company (July 2020). Once it is available in this catalog, I will get paid royalties if people use my software.

To be included, I needed to make adjustments and create promotion material. This was tested and accepted by the company (August 2020).

At that point I was informed that my software was expected to be added in the second week of October 2020. The big gap until launch was a little disappointing, the expected was already a bit suspicious.

In the week when my product was expected to be added I asked three times at which date it will be added, after which I was informed that the tentative launch date of my product was pushed back by a month, without giving any reason or justification. This costs me an additional month of revenue, while I had to make quite an investment to make my product ready for their catalog.

I asked the company for a reason for the delay, and if I could get compensated for it, but I didn't get any response. Since they again call it a tentative launch date, I fear that they will pull the same trick on me next month..

There hasn't been any promise that my product will be added within a certain time span, but they also didn't mention that it could take months before my product is added to their catalog. At the same time, other products seem to be added all the time. From a legal point of view, could I claim that my product must be added asap? And is it reasonable to ask for compensation for the missed revenue due to pushing back the launch?

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    We haven't made it to November 2020 yet... – Ron Beyer Oct 17 '20 at 12:27
  • This sounds very much like a scam - did you pay to be part of this catalog? – Moo Oct 17 '20 at 13:49
  • @Ron - Thanks for pointing that out, should be October, I just updated that. – Bastiaan van den Berg Oct 17 '20 at 17:30
  • @Moo Thanks for the warning, but it is not a scam, the company is well known and I didn't pay to be part of the catalog. – Bastiaan van den Berg Oct 17 '20 at 17:32
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could I claim that my product must be added asap? And is it reasonable to ask for compensation for the missed revenue due to pushing back the launch?

Unfortunately, no. Your description reflects that you consciously treated as sufficient the limited knowledge you had at the formation of the contract. See Restatement (Second) of Contracts at §154(b).

There is no indication that (1) at the formation of the contract the company committed to a more specific timing, or (2) you would have declined the invitation had you known at the formation of the contract that the company would keep postponing the inclusion of your product in the way you describe. You were given the expected date only after you performed your duties pursuant to the contract, which defeats the notion that the company's timing was any relevant to your decision of entering the contract.

The only way you could prevail is by proving that the company breached the covenant of good faith and fair dealing that is implied in all contracts. See Restatement at §205. Other than that, the lack of contract provisions to protect your interests give the company significant discretion.

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  • Thanks for your clear answer. If they keep pushing the release date backwards, I think the "covenant of good faith and fair dealing" might be applicable, especially since they do not give any reason for not adding it. Thanks for your time and effort. – Bastiaan van den Berg Oct 17 '20 at 13:19
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    @BastiaanvandenBerg Beware that the company's reluctance to give any reason might not suffice. The company might persuade a court that it had legitimate reasons and no duty to disclose them to you. Hopefully the company will comply soon, since the element of [company's] discretion seems hard to overcome in this matter. – Iñaki Viggers Oct 17 '20 at 14:06
  • Did you agree not to sell it via other venues? – George White Oct 19 '20 at 20:29
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What does the contract say?

If there is a term in the contract about the timeliness of appearing in the catalog, are they in breach?

If there isn’t such a term, then there is an implied term that obligations will be done in a reasonable time. What’s reasonable depends on the circumstances.

If they are in breach, what does the contract say the consequences are? If they wrote the contract, it’s highly likely they limited their liability. They are entitled to do this because you are not forced to contract with them.

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  • The contract doesn't say anything about the timeline of appearing in the catalog, only about the timeline when removing the product from the catalog. So if that means they have to add it within reasonable time, then I have at least something to discuss with them. Thanks. – Bastiaan van den Berg Oct 19 '20 at 11:48

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