that if someone needed to reach that issue that or vision in the contract that required that extended the performance periods through two thousand and nineteen that that was the amendment that that included you're claiming best efforts whether it's best efforts or reasonable efforts your contention is that that the contract and that language alone impose that duty and the district court never reached that i counsel isn't it correct that under california law in some instances whether or not there is a duty like this could be determined by the trier  be based on the contract and sometimes parole is admissible sometimes parole is admissible but here there you have no other evidence that should be admissible based that the reason why they're responsible for this and they didn't do anything then evidence about what they did would obviously be admissible and whether it has already been admitted may be a separate if you but how can you say they did nothing when that evidence that we didn't the record the the point is there is no evidence they actually tried to sell the product there were obviously development costs and they ran off prior to what is your honor i will i will accept that as a given but that point is that they made absolutely no efforts and try to sell this product period and in fact the record is clear a senior vice president said that they directed extend the starting date to when they started to sell the product that was taken out of the contract it was not going to happen but it had no bearing there was no request he's best efforts at all counsel as i understand what what  her husband her counsel's letter said as she proposes that the sales period be extended for three years from the time when pearson commences a bona fide a commercial effort to sell the courses which and what are they agreed to was a fixed time extension is that correct that is ground zero the point i'm making is that that pretty contract correspondence is not admissible sales force education on search engine optimization the program was submitted for numerous requests for us all and in fact was sold to several several several school districts so from enough for us to conclude that his incorporation by reference of interactive story answers is admissible if we were to determine that this were relevant why shouldn't we leave that to the district with regard to this particular sales effort i have personal knowledge of it because not simply because i was the vice president but because i was involved in the efforts or i witnessed or i reviewed the documents which are business even related to the causation because i do think what is extraordinary here is that you have laid out attempting to go over summary judgment with no evidence of breach and no evidence of nation and that's the on and of course the district court never decided the question of duty and the district court's discussion of this twenty seven of the opinion is that even if the court were to accept that the burden shifted pierson those burden by pointing out that the record is barren and that's not my understanding of how burden shifting works that burden that if there's a burden shifting there's an affirmative duty to show was i any alleged breach didn't materially contributed and you've claimed that you've done that but the district court stated that no even if the burden shifted all you had to do is say there's no  and that's not my understanding of the way burden shifting works so maybe you did have evidence in there but if we agree that the burden shifted watch shouldn't we just the district court deal with this issue if we that i've looked at all of this and what i see is that they've proposed that the sales period be extended for three years from when pearson commences bona fide commercial efforts and what the parties agreed on on those type of negotiations there was no duty because you have an original contract which may or may not have had a duty of some type of the efforts and then whatever that duty existed was simply extended for three years so if there was no duty there was no duty if there was a duty it went for several more years but i don't see the fact that dr cuttings has been proposed a particular way the three year is i am concerned that here's an education will not use those to feed a commercial efforts to sell this product and i would like to be protected i would like a provision put it here that will protect any against pearson such duty you wrote back we're good we're just willing to do three years right yes your honor and the way i would characterize that is to say that dr king requested a provision that would protect shifting as how she has consistently tended to argue causation in this case that is not jacobs jacobs is about what is sometimes referred to as the prevention doctrine related to conditions  everyone agrees is not a duty that is subject to indigent perceives whether it exists as a duty or not is not a duty that subjective condition see so all of this jacobs discussion is not relevant to the million dollars number that would have kicked in additional amounts and i just don't see how that is mysterious that is materially distinguished from jacobs where the court specifically said the failure of tenneco to submit the contracts for approval which to me is the equivalent of the failure to try to sell by the board constituted quote unquote bad faith the only way t breach didn't contribute to the failure to hit seventy five i don't see how that's distinguishable from what happened in j s well we read jacob's as concerning a breach of a covenant that was allegedly developed these arguments in front of the district or she is not accused us of breaching that duty and therefore he didn't interject any sort of condition for seeing arguments as a defense or not to be clear i don't think we would have this is in my view not a condition proceed i will tell you we have surveyed the cases we have not found any case nationally in which we formulate payment was treated as a condition for sick conditions for senior disfavored in the law the right reading of this  is a covenant paid off or cutting according to a formula based on sales no different than any employer who isin hires an employee and offers to pay them fifteen dollars an hour for the hours works that's not a condition perceiving that's e events that needed to occur and certain sort of her example there's a cap royalty in this case maximum out the doctor going forward but imagine if it were encamped if it were simply a flat percentage based on sales under those circumstances only after the plaintiff has made an initial showing that the failure of the material we contribute contributed to the not occurrence of the condition you see this in the williams case in delaware