is the case that the court of federal claims finding factual finding that there was an agreement here manifested by the exchange of emails to an implied licenses supported that it may be don't agree with insufficient but under your argument but as a factual matter how can it be clearly erroneous it was clearly erroneous because there was considerable evidence in the substantial evidence is not clearly erroneous and then your argument is that can't be an implied license where there's an express contract at the same time that's correct that's so but there are  various cases that hold that you can have an implied license resulting from conduct and exchanges between the parties right there's nothing you can have an implied license  you can have to express contracts dealing with the same subject matter they don't deal with and express contract and then a separate implied license correct there aren't that that's correct digestion alley and then the key issue is whether the implied life and be able to do the same subject matter and whether it's completely unrelated to the expressed contract and don't understand the court of federal claims to have found or that the government is arguing that there was a separate contract that gave them a license i think they're saying that there was an agreement or implied agreement to give them a license which was terminable and in fact was terminated later isn't that correct that the argument is not that there was a separate contract but that there was a separate li we expect to be paid extra for the use of the slow device there was talk about being paid for additional licenses beyond the thirty eight dollars but i don't see where in the record they said to the navy they expected to be paid more for the floating licenses could you show me where that is in one place where the plane deployment schedule with me now to that management on that point don't we have an impossibilities situation because the flexor software wouldn't work and where does that lead us in terms of government liability that the use of the that that the license that the reason he found that there was an implied license is because he found that the management was was i mean it looks as though there's a situation here where both parties assumed you could use flex eric to measure all the usage turned out you couldn't where does that leave us and if we assume that the use of flex era was something that both parties contemplated the st issue with respect to that your honor is that the flex era term in the contract was a covenant as opposed to a condition and so according to the court's decisions in storage tack and jacobson at most if there was let's let's assume that we disagree with you on that position let's assume that it was a condition of the license which is essentially what of claims found as a matter of fact so if it if it is then can you ask answer judge strikes question yes based on that your honor i do believe that the court of claims would have to do some additional fact by means but it is it appears to be a mutual mistake it appears that this management attempted to provide the navy with  of the software that would work with flex era both parties believed that it was completely working with flex era flex era did limit and track part of the software but did not limit and track the remaining part of the software troubles me is that when the government finally concluded that the flex their software wouldn't work it didn't go to bed management and say here here's a problem  what do we do now to measure the usage and wasn't there some sort of obligation to bring that to the attention of that management to try to work out a solution the government did bring that management's attention earlier this may not have made its way into the joint appendix but it wasn't discovered until two thousand and fifteen by that point the parties had already started to attempt to negotiate another license for eighty eight license keys and the government brought it to management's attention and at that point everything fell apart so the government did bring it to  if even then the government already knew well before it notified management that it wasn't able to use flex there for the plug in file at all and when they pulled the usage so they weren't polling the full internally and with plan nine to try to determine how many uses there were by looking at how many people were using the site or through the application but i'd like that the government continued to to push out the copies yes that that particular time it was continued it was being deployed on computer systems that or new computers that were put on the network there were only a certain number of active computers on the network at any particular time but there would be computers that were retired new computers that were put on the right so your answer is yes they were continuing to push out copies despite the fact that they knew that they couldn't track that usage yes that is true they were they they knew that they could track the usage  expansion usage as i mentioned there were less than thirty eight dollars logons to the slide or three the website per day so even if like sarah was not technically limit the usage of the software the software was just not being used by the navy and on top of politics but you don't know that because there was no way of measuring the plug and use it right not directly your honor but they're not directly was measured at all it was measured in the sense that the only application that the plugin had been  use less than thirty eight dollars times per day it's also indirectly ascertained by the fact that management software never sold why usage out in the public  it was giving away how i don't understand what that has to do it with anything if you know that the navy wanted to push this out through all of its all of its systems and so the fact that that the navy was their biggest customer and they didn't sell to a lot of other people that has nothing to do with whether there was any kind of agreement with the navy or has to do with the demand and whether or whether the usage of the plugin could be tracked and whether the usage of spiders three d is a fair benchmark when i beat the record if i read the record that when a user couldn't use the desktop app or couldn't get it to work they would just jump on the web and so the failure to flex wrap means that there was a totally ineffective system in place to monitor any usages your honor and so what the what user would do is they would jump on the web app and they would go to the spiders three d web site and that access would be tracked and we have not but that but that access to the if they were able to get it on their desktop then that access wasn't tracked right if if they used the desktop application that access was tracked up until two thousand and fifteen after two thousand and fifteen when flex there was removed you couldn't even use the desktop application at that point you had to use the web plugin and again that usage through spiders three d was tracked i don't understand that i thought it was agreed that the plugin usage was not correct then plug several couldn't do on the web plug on the web on the navy's internet and go to the spiders through the web site that information was tracked from roughly two thousand and fourteen to two thousand and sixteen the number of unique visitors per day or even visitors the number of visits per day was tracked so that information can be used to determine how many times management software was being used by the  your honour's i'd like to quickly address the st issue that bit management brought up which is that an exclusive or i'm sorry the express license precludes an implied license or implied contract between you're not contending here that there was an implied contract find or stand it's just that that was an implied license which can be granted without a contract that's correct your honor and in fact the implied license is perfectly understandable in this case because you have two different sets of express contracts neither of them between directly between the government and management and those express contracts do not describe what is a license they do not describe exactly what the intended use is to be and so essentially you have to have  an implied licens to to breathe life into those express written contracts that's completely different than the situation the bit management relies on him for example the ground improvement tax case or the normandy case where there was an express written contract that precluded that the party who was trying to assert an implied contract or an implied contract that was dreadfully contradictory to those expressed contract interpret ing the written contracts to say that the written contracts don't provide enough information i mean that doesn't that doesn't mean that they're not relating to the same topic area those  written contracts are ambiguous your honor and they they broadly relate to the same topic of management software but the contracts don't describe what kind of licenses are being pressured and how those licenses are to be deployed well isn't that methodology to to to deal with that to amend the written contracts if there's some confusion your honor that doesn't always happen and there were several times that the management themselves amended what they would do that they delivered different kinds of software than what was specified in the contracts the parties have been working for and collaborat for years before the contracts during deployment then even after deployment and all of that was taken into consideration by the court federal claims so you have to look at the totality of the circumstances and that's exactly what the court a federal claims did and its approach was not clearly erroneous on that but isn't isn't the question of whether there's an implied license isn't that a question of law that that turns on  facts but it's still a question of law ultimately your honor if if the court applied the wrong standard for example if the court if the court federal claims felt that this was not an affirmative defense and push the burden the management then that that would be an issue of law that is something that bit management asserted in their opening brief but it did not seem to be addressed in their reply brief and so it does not appear that there are any in the storage tek case in that particular case there was a written life and between the copyright owner and between the customers and the customers agent was able to assert that there was an implied license for the use that made because the written license didn't express lee preclude the copyright by this year attempting now to say that that is what the claims court really did was say that there was an ambiguity in the written documents and so they were using perl evidence to interpret those documents but that's not what the court did it found a separate implied license right that is what the court found that it didn't say it was interpreted in the written contracts that's correct your honor i think that either approach gets you to the exact same do have the problem that you're not supposed to have an implied contract or implied license in the face of a written contract right that's correct although again there's no pr between the government and the management and that's because the government didn't want there to be direct pressure to write but the government understood it was worth working directly through an agent at its own request that plan nine was not the agent of either party the corporal claims expressly found that planet nine was not that management's agent that's on page three of the appendix and that was based on the stipulation between the part and the record shows that planet nine played an important role wasn't agents of of either party it planet nine provided advice and recommendations to bits management to help negotiate the terms of the proposal cite can you cite any case where the word privity is actually used in the context of assessing whether you can have an implied agreement in the face of a written express contract on the same subject matter your honor we're not saying that privity is an absolute rule and as far as the cases we cite the hawkins case the supreme court case from eight hundred and seventy dollars which talks about an agreement between the parties that that language of an agreement between the parties has been in many of the cases that we cite is it then the schism case as well if it's  me most of the cases are you saying that but it management wouldn't be a rd party beneficiary of of planet nine agreement with the navy what we're saying your honor is that the issue of is a consideration that has to be taken into account along with what's in the contract the language that's in the the contract the relationship between the parties it's essentially that to tell the of circumstances and  one of those things if if management was a rd party beneficiary that might have been a fact but at the end of the day it's its overall course of conduct its interactions the things that the court federal claim cited and relied upon to reach a conclusion that are controlling and i understand that my time is up so unless there are any further questions we ask the judgment