i have been racking my brain trying to think of a more elegant way to phrase the legal issue as i see it the it's currently before the court room hopefully i will make my best effort here this morning first i don't think there's any dispute between the parties that the first agreement of two thousand and one was in fact superseded and substituted by the two thousand and three agreement and that that substitution of the two contracts constitute innovation under the law into the second contract one way to look at this particular issue that's before the court is the issue of the first four titles that the district court and its order found were generated pursuant to the first agreement of two thousand and one now one of the rights of the school zone was to approve those products one of the obligations that were in that particular contract on the part of my client discharged upon execution of the second agreement now we come to the next issue was the requirement of further approval of the first four titles that were admittedly generated pursuant to the first agreement still outstanding when we get to the second agreement if you look at the second agreement it has a very specific section four point three and in the tash schedule c it gives a timetable for such things as development of the license product and for approval by schools on the first four titles are not on schedule c and the court found that that's because they had already been done pursuant to the first agreement and therefore didn't need to be part of the second agreement yet it is school zones position that they still needed approval of the first four titles and our position is then necessarily the first four titles should have been identified on the schedule admittedly with the majority of the work already completed but under the last portion approval of the packaging it should have been a time period for approval of the packaging of the first w titles if in fact approval of the packaging for the first floor title was still required under the terms of the agreement we say that as of the date the second agreement is signed our client had already thought that they had approval district court disagreed that there was a formal proof given but they'd already shipped some of the product in question if school zones position  correct as of the day our client signs the second contract they're already automatically in breach of it because they've already done something that violates it the only reasonable interpretation of the two contracts together is the parties intended the second contract supersede the first and that asked a new products that need still be to be developed the parties would follow the schedule and that the first four titles without being completed that was our client assumption the trial court found to the contrary i believe that's the legal issue that is really for this court is what in fact was the nature and a fact of the parties notation of the first contract with the second and what is the correct interpretation of the two contrast when read together as to what obligations would have still survived and which ones would have been discharged as a result of an ovation well then of that the word now they say is not used in the second contract at all isn't the second contract paragraph six point one require approval of the licensed product but then again paragraph four point three says approval of the various stages of the licensed product is governed by schedule c and when you go to schedule c there's no requirement for further approval of any of the first four titles so if the term license product as used in six point one i the same as in four point three that means the approval process is no longer further required because the parties drafted a specific provision in the contract with dell with the timing of the need for further approval and it's not there so the trial court found in his final ruling that the parties didn't intend the first four titles to be part of that schedule because it wasn't a licensed product the term license product is the same language that appears in six point one that they rely upon to say you still need approval so it's contradictory no matter which way you well it has to be a licensed product for titles are part of the licensed product that the first four titles are not part of a schedule c minor which if you go back a paragraph or point three of the parties agreement this is the schedule for the approval of the licensed product our position is that's consistent with the exchange of letters between the lawyers where sorry media's lawyer said we assume the first four are  to prove once we sign a new agreement and the letter back was everything's open until we sign a comprehensive agreement well a comprehensive agreement got written between the parties and that comprehensive agreement section on time table for further approval of the license product with no requirement for further submission of the packaging with respect to the first four titles because everybody knew they'd already produced a bunch of the stuff and they had already shipped it out i mean we would be admitting to a breach as soon as we signed it if it applied to the first four titles now our clients agreed that on the next run gal will change the language on the cd rom package because it was really about the men in this dispute it was instead of saying copyright schools on its side copyright star the media they wanted it changed like disagree with that but the problem is is that under the first agreement it says this must protect the publishers rights to the publisher in this case was the star immediately starry media was protecting both of them by putting a copyright notice on it i think it was anything anybody would possibly can be confused that it was a school zone product because schools on product was the thing that had the trade name and was such a good product that's why they thought it would be selling in arabic  spanish in other languages i don't know if your honour's are familiar with the concept of localization what they would do is use the same language but of course change it to i mean that the same language the same terminology but then change the language you would also change the background setting in the cd rom so that it would be more fit for the culture that you're attempting to sell and so that's really all that was being accomplished was rewrite it put new background so that the morse marketable schools don't have a great product our client wanted to trade on that was the reason why they entered in the contract in the first place of copyright and trademark where the defense was no no we have a license and it was their obligation to prove that they have permission to copy or trademarks and copyrights they point to the license agreement the license agreement requires that we approve any product that they sell during the course of the discovery in the case we said tell us where we approved these specific four titles and they came up with three emails that had nothing to do with approval one of the e mail said your work on this is outstanding and they say that that meant that the work is excellent in fact in meant if you read the e mail that you haven't done it yet so there's no evidence that we actually approved it we come and based on the issue of no vacation and i believe they're confused innovation with released ovation means the substitution of obligations it doesn't release of any prior preaches an example is if there is an is discovered during the course of that second agreement the employee would be hard pressed to say no no you can't discharge me on the second agreement because i am vessels of the first and we have a new agreement in this case the obligation to seek approval we signed the second agreement in january they delayed sighted until march and during that period they were selling this product under pro product out the back door with our approval well we discovered this months later i believe the term cancellation it with should be read with the intent of the parties the parties did not intend to be intense it released certainly well as lawyers we all know how to graph release clauses and there's a specific language that you use addresses products going forward and it addresses those products that we haven't given them the background information and we haven't given the programs so we're going to set up a schedule so they have to perform the last thing is you provide us with the final we it would have been better progress and have included it but if you look at the negotiations they said we want specifically we want you to say this is approved in the second agreement that's what they said in one of the letters that they attached  or they relied on and we said no we'll deal with that in the agreement well the agreement didn't deal with that there's no there's no dispute that the left in the agreement says we have approved these four titles but they're saying it's although we can't come up with any communication we  this agreement that was never stated in any communication from them to us again the only communications that would be for the court were the e mails from last saying you need approval and then you that happen after the agreement was signed in the sponsors nothing from them saying no no no we negotiated that already it's already been approved in fact when we sent our demand letter to them if you look at their response they don't make this argument they don't sell we do this this was all dealt with we signed a second agreement they were already in breach when they signed the agreement well yeah they were already in breach because it factor in months before they signed it they were violating the terms of the agreement both the first dream and second agreement was that they could have cheered when we sent them the notice that you've deceived breached the agreement we said we just want you to identify who you sold it to we want you to account for what you receive for i want to certify that you're telling us the truth and they refused to do that fact we didn't even know about this months and months earlier back in two thousand and two they were selling this product the arabic product to a country in syria are to a company in syria without our knowledge w without even presented that product to us in the first place and the evidence shows that afterwards that company rejected it in fact because the localization was bad what they what they presented to the people and sincere ia was a program that ask for them to give it to us first to seek her approval he didn't do that there's no dispute that they didn't do that again there's no street that we have or approve this product the only thing that was lacking in the two quick points if i may i think the standard by which the court interprets a written contract is under a reasonable person standard and i think a reasonable person reading the contract and wanting to know what still remains needed to be done and as to the development of the of the product in question would look at the specific clause that pertain to that issue and then look at the specifically negotiated schedule to find out when you had to have things done and it would have been an extremely simple matter if they still needed further approval of the first four titles packaging to simply put it on schedule at all of the first four titles not for other but they were submitted for approval right never really said yes or no it was just left hanging for us a very substantial period of time meanwhile my client is basically going through economic ruin waiting to trying to get these things to the market according to the letter that was written by counsel for school zone they believe they had cut a bad deal now putting economic pressure on someone to renegotiate is a is a pretty good business tactic and they did substantially better in version two in terms of their royalties and even in line there was no time limit and when they had to c they got very specific years when you will do certain things in other words they got specifics as to when things were going to happen and if they still required a specific as to the first four titles and were already done and the only problem was a little problem the copyright notice on the packaging put it in the contract and have the parties negotiate it don't sandbag and wait until the thing is signed and then say oh by the way you say you breached a long time ago before you even signe contrary to what counsel said you know if i have an off contract with mr x to pay him one hundred thousand dollars by a certain date and i breach it but we then enter into a new separate contract that says it supersedes the first and now i have to pay him one hundred thousand dollars my and new date and assuming that there's consideration for that new agreement then my breach under the first agreement disappears he can't sue me on the first agreement anymore and my breach of that first agreement goes away upon execution of the second that's what the concept of notation is all about and i think your honour's correctly pointed out the critical language it doesn't say just supersedes  cancels the first and everything that was done and that was the court's first problem is they have to go back and get the two thousand and one agreement start analyzing it and it's first ruling to try and get a breach