1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TALKDESK, INC.,

Plaintiff,

v. 

DM TRANS, LLC d/b/a ARRIVE 

LOGISTICS, 

Defendant.

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) C.A. No. N23C-08-005 MAA CCLD

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Submitted: February 9, 2024

Decided: May 31, 2024

Upon Plaintiff’s Motion to Dismiss: 

GRANTED in Part, and DENIED in Part.

MEMORANDUM OPINION

Peter H. Kyle, Esquire, and Daniel P. Klusman, Esquire, of DLA PIPER LLP, 

Wilmington, Delaware, and Matthew J. Jacobs, Esquire (Argued), Jessica S. Heim, 

Esquire, and Emily Margolis, Esquire, of DLA PIPER LLP, San Francisco, 

California, Attorneys for Plaintiff/Counterclaim Defendant Talkdesk, Inc.

Rudolf Koch, Esquire, Elizabeth J. Freud, Esquire, and Nicholas F. Mastria, Esquire, 

of RICHARDS, LAYTON & FINGER P.A., Wilmington, Delaware, and Michael 

T. Jones, Esquire (Argued), and Ashley V. Hart, Esquire, of HOLLAND & KNIGHT

LLP, Boston, Massachusetts, Attorneys for Defendant/Counterclaim Plaintiff DM

Trans, LLC (d/b/a Arrive Logistics).

Adams, J.
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I. INTRODUCTION

Talkdesk, Inc. (“Talkdesk”) entered into a contract with DM Trans, LLC d/b/a 

Arrive Logistics (“Arrive”) wherein Talkdesk would provide communication 

services for Arrive’s use in conducting Arrive’s business. Arrive alleges that it

indicated its needs, prompted primarily by the COVID-19 pandemic, to which 

Talkdesk repeatedly affirmed that Talkdesk’s products could meet those needs. 

Talkdesk and Arrive subsequently entered into a contract outlining Talkdesk’s 

services. After multiple years of Arrive informing Talkdesk of problems with the 

products and requesting improvements, Arrive terminated the contract and asserts 

several claims, via Counterclaims, against Talkdesk. Talkdesk filed a Motion to 

Dismiss Arrive’s Counterclaims. For the reasons that follow, the Motion to Dismiss

is GRANTED in Part, and DENIED in Part.

II. FACTS

1

A. THE PARTIES

Plaintiff/Counterclaim Defendant Talkdesk is a Delaware corporation with its 

headquarters in San Francisco, California.2 Talkdesk is a cloud-based call-center 

software provider.3

1 The facts are drawn from Defendant’s Answer, Affirmative Defenses and Counterclaims to 

Plaintiff’s Complaint. D.I. 4 [hereinafter “Countercl.”]. The Court acknowledges that Defendant 

is also Counterclaim Plaintiff, but for clarity, the Court will continue to refer to Talkdesk as

Plaintiff and Arrive as Defendant.

2 Countercl. ¶ 1.

3

Id. ¶ 6.
3

Defendant/Counterclaim Plaintiff, Arrive, has its principal place of business 

in Austin, Texas.4 Arrive is “a leading North American freight broker that provides 

transportation logistics services to parties seeking to ship goods by utilizing Arrive’s 

network of third-party carriers.”5 Arrive has received several awards and high 

recognition from its customers for excellent customer service.6 

B. ARRIVE’S BUSINESS OPERATIONS

Arrive has over 2,000 employees, 6,000 customers, 38,000 active motor 

carriers, and about 70,000 motor carriers under contract, making it one of the largest 

freight brokerage firms in the industry.

7

 The Business Development and Carrier 

Sales teams work in a shared space—a total of approximately 1500 employees.8 The 

employees make and receive a high number of phone calls with customers, shippers, 

and motor carriers.9 The effectiveness of Arrive’s entire business relies on efficient 

and reliable communication methods so as to avoid the possibility of a competitor 

taking the opportunity from Arrive.10 “Telephone usage, along with Arrive’s 

industry leading proprietary transportation management system software and related 

applications, is the heartbeat of Arrive’s core operations.”11

4

Id. ¶ 2.

5

Id. ¶ 5.

6

Id.

7

Id. ¶ 7.

8

Id. ¶¶ 8–9.

9

Id. ¶¶ 9–15.

10 Id. ¶¶ 10–12.

11 Id. ¶ 16.
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C. THE IMPACT OF COVID ON ARRIVE

When the COVID-19 pandemic forced businesses to transition to remote 

work, Arrive struggled because of its heavy reliance on its “telephony systems to 

carry out their necessary work.”12 The company’s first solution, use of personal 

phones, was insufficient because of security concerns, confidentiality concerns, less 

reliable and clear service, and an inability to track key performance metrics.13 Arrive 

determined it would instead need to find a vendor that could handle a high volume 

of inbound and outbound calls.14 Arrive created a 150-question Request for 

Information (“RFI”) for potential vendors to indicate their capacity.15 

In late-April 2020, Talkdesk responded affirmatively to every question on the 

RFI and the two companies began to discuss solutions and pricing.16 Over the next 

few months, on at least ten occasions, members of both companies engaged in email 

and virtual meetings to explore Talkdesk’s products and how those products could 

suit Arrive’s needs.17 Arrive clearly described the capabilities it would need for its 

business, all of which Talkdesk’s representatives assured Arrive it could provide.18 

Arrive received other vendor proposals, but based on Talkdesk’s assurances of its 

12 Id. ¶ 17.

13 Id. ¶ 18.

14 Id. ¶ 19.

15 Id. ¶ 20.

16 Id. ¶¶ 21–22.

17 Id. ¶¶ 23–28, 83.

18 Id. ¶¶ 28–31, 84–85.
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ability to meet Arrive’s needs, Arrive chose Talkdesk as Arrive’s cloud-based 

telephony provider.19

D. THE MASTER SUBSCRIPTION AGREEMENT

On approximately June 30, 2020, Arrive and Talkdesk entered into the Master 

Subscription Agreement (the “Agreement” or “MSA”).20 The Agreement contained 

multiple terms outlining Talkdesk’s services including a “minimum service level 

commitment.”21 The Agreement provided for termination in the event either party 

“materially breached this agreement and such breach remains uncured at the 

expiration of such thirty (30) day period[.]”22 Arrive also insisted in Schedule A of 

the Agreement (the “Order Form”) that Arrive may terminate the Agreement with 

written notice to Talkdesk within 30 days “[i]n the event (a) Talkdesk Service fails 

to achieve 98% Availability for three consecutive months, or (b) Talkdesk Service 

is unavailable for more than 24 consecutive hours for two consecutive months[.]”23

E. TALKDESK’S ALLEGED BREACH OF THE AGREEMENT

Arrive learned early on that Talkdesk’s product was “not at all suitable for the 

needs of” Arrive.24 Arrive’s employees dealt with a variety of issues with 

Talkdesk’s services including connection failures, audio issues, stuck status, lack of 

19 Id. ¶ 31.

20 Id. ¶ 32.

21 Id. ¶¶ 33–34.

22 Id. ¶¶ 35–36.

23 Id. ¶ 37.

24 Id. ¶ 38.
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call-waiting and call transfer functions, lack of hard phone (SIP device) 

functionality, and inaccurate usage data.25 These issues amounted to a failure to 

“achieve 98% Availability for any month during the parties’ relationship” as was 

required by the Agreement.26 Arrive employees stopped using Talkdesk products 

altogether and returned to using their personal phones for work.27 Arrive “promptly 

and consistently raised these and other issues with Talkdesk,” but Talkdesk “failed 

to address or cure these problems.”28 Talkdesk instead “responded by indifference, 

dragging their feet, ignoring the problems or trying to blame Arrive for the issues.”29 

Arrive eventually learned from Talkdesk’s own employees that “Talkdesk had 

sold Arrive the wrong solution for Arrive’s needs in order to license [Talkdesk’s]

higher-priced Professional Plus solution and lock in a more lucrative contract.”30 

Talkdesk employees on multiple occasions admitted that Talkdesk’s products were 

not suited for Arrive’s needs.31 These employees’ allegations were supported by an 

independent consultant retained by Arrive, “who advised Arrive that Talkdesk had

indeed oversold them on Talkdesk’s most expensive solution designed for call 

centers (not a brokerage operation like Arrive operates), lacking the features and 

25 Id. ¶ 39.

26 Id. ¶ 40.

27 Id. ¶ 41.

28 Id. ¶¶ 42–43.

29 Id. ¶ 43.

30 Id. ¶ 44.

31 Id. ¶¶ 45–47.
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functionality that Arrive did need, and including at a significant cost features that 

Arrive would never use.”32

Over the course of the parties’ relationship, Arrive has paid nearly $6.5 

million to Talkdesk.33 On July 12, 2023, Arrive sent Talkdesk a letter terminating 

the Agreement.34 The letter served as thirty days’ notice, and Arrive continued to 

pay Talkdesk for the costs and fees incurred up to August 12, 2023.35

III. PROCEDURAL HISTORY

On August 1, 2023, Talkdesk filed a Complaint alleging four counts: (1) 

Anticipatory Breach of Contract;36 (2) Breach of Contract;37 (3) Attorneys’ Fees;38

and (4) Declaratory Judgment.39 On August 28, 2023, Arrive filed an Answer, 

Affirmative Defenses and alleged eight Counterclaims: (1) Breach of Contract;40 (2) 

Declaratory Judgment—Termination was Valid;41 (3) Breach of Covenant of Good 

Faith and Fair Dealing;42 (4) Unconscionability;43 (5) Fraud in the Inducement;44 (6) 

32 Id. ¶ 48.

33 Id. ¶ 49.

34 Id. ¶ 50.

35 Id.

36 Compl. ¶¶ 27–30.

37 Id. ¶¶ 31–34.

38 Id. ¶¶ 35–37.

39 Id. ¶¶ 38–41.

40 Countercl. ¶¶ 52–56.

41 Id. ¶¶ 57–62.

42 Id. ¶¶ 63–70.

43 Id. ¶¶ 71–79.

44 Id. ¶¶ 80–94.
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Unjust Enrichment;45 (7) Breach of the Implied Warranty of Fitness for a Particular 

Purpose;46 and (8) Violation of California’s Unfair Competition Law.47 On 

September 18, 2023, Talkdesk filed a Motion to Dismiss all eight of Arrive’s 

Counterclaims for failure to state a claim.48 Briefing concluded on December 6, 

2023. The Court held oral argument on February 9, 2024, dismissed Counterclaim 

(3), and reserved decision on all other Counterclaims. 

IV. STANDARD OF REVIEW

The law governing a motion to dismiss for failure to state a claim pursuant to 

Superior Court Civil Rule 12(b)(6) is well settled. A court will dismiss for failure 

to state a claim “only if ‘it appears with reasonable certainty that the plaintiff could 

not prove any set of facts that would entitle him to relief.’”

49

 The court must “‘accept 

all well-pleaded factual allegations in the Complaint as true and draw all reasonable 

inferences in favor of the plaintiff.’”50 “[E]ven vague allegations are ‘well-pleaded’ 

if they give the opposing party notice of the claim[.]”51 The court, however, need 

45 Id. ¶¶ 95–97.

46 Id. ¶¶ 98–103.

47 Id. ¶¶ 104–107.

48 D.I. 6.

49 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (quoting Ramunno v. Cawley, 705 A.2d 1029, 

1034 (Del. 1998)).

50 Stillwater Mining Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, P.A., 289 A.3d 1274, 1282 

(Del. 2023) (quoting City of Fort Myers Gen. Emps.’ Pension Fund v. Haley, 235 A.3d 702, 716 

(Del. 2020)).

51 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (citing Precision Air v. Standard 

Chlorine of Del., 654 A.2d 403, 406 (Del. 1995)).
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not “accept as true conclusory allegations ‘without specific supporting factual 

allegations.’”52

V. ANALYSIS

A. BREACH OF CONTRACT

1. The Parties’ Contentions

Talkdesk asserts that breach of contract should be dismissed for two reasons: 

(1) “Arrive does not allege that Talkdesk violated any provision of the MSA” and 

(2) “Arrive concedes that it did not follow the MSA’s notice requirements even if 

Talkdesk had breached the MSA.”53 As to the first issue, Talkdesk notes that the 

only challenged provision is that Talkdesk failed to provide 98% Availability, which 

is not supported by the pleadings.54 As to the second issue, Talkdesk argues that 

even if Talkdesk breached the Agreement, Arrive failed to follow any of the 

Agreement’s three required notice provisions of which compliance are “conditions 

precedent to Arrive’s ability to receive any benefit under any of these three 

provisions[.]”55 Talkdesk asserts that these notice provisions allow Talkdesk an 

opportunity to cure before Arrive can terminate the contract.56

52 In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (In re Santa Fe Pac. 

Corp. S’holder Litig., 669 A.2d 59, 65–66 (Del. 1995)).

53 Pl.’s Br. in Supp. of Pl.’s Mot. to Dismiss [hereinafter “Pl.’s Br.”] at 20.

54 Id. at 21–23.

55 Id. at 23–24 (referring to Compl. Ex. 1, Master Subscription Agreement [hereinafter “The 

Agreement”], § 4(a), Schedule A Order Form, and § 13.3 of the Agreement).

56 Id. at 24–25.
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Arrive disputes these allegations by detailing the issues it was having with 

Talkdesk and how Talkdesk failed to remedy them, including, but not limited to, 

issues that indicated Talkdesk failed to achieve “98% Availability.”57 As to the 

notice requirements, Arrive argues that “Arrive was in constant communication with 

Talkdesk regarding the technical issues and lack of availability, giving Talkdesk 

both notice and the opportunity to cure.”58 Arrive also argued the notice requirement 

should be excused because compliance was “futile.”59 

Talkdesk emphasizes that to sufficiently plead a breach of contract, Arrive 

must plead what specific contract provision was breached, and Arrive failed to do

so. Instead, Arrive only “tosse[d] against the wall a series of alleged failures by 

Talkdesk but none what [sic] is required under the contract itself.”60 The only 

provision Talkdesk credits is that Talkdesk failed to achieve 98% Availability, but 

argues even that fails because “Availability” is a defined term and Arrive did not

plead a failure under the definition.61 Talkdesk also notes that the facts pled do not 

establish “futility.”

62

57 Def.’s Opp’n to Pl.’s Mot. to Dismiss [hereinafter “Def.’s Opp’n”] at 23–26.

58 Id. at 26–27 (citing Countercl. ¶¶ 42–49 as examples).

59 Id. (quoting Optical Air Data Sys., LLC v. L-3 Commc’ns Corp., 2019 WL 328429, at *4 (Del. 

Super. Jan. 23, 2019)).

60 Pl.’s Reply in Supp. of Pl.’s Mot. to Dismiss [hereinafter “Pl.’s Reply”] at 17.

61 Id. at 18.

62 Id. at 19.
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2. Arrive has sufficiently pled a limited breach of contract claim, but only

as to “Availability.”

To survive a motion to dismiss a breach of contract, Arrive must allege “(1) 

the existence of a contract; (2) that the contract was breached; and (3) damages 

suffered as a result of the breach.”63 Arrive must “demonstrate substantial 

compliance with all provisions of the contract” to recover damages.64 The court, at 

the motion to dismiss stage, will not “choose between two differing reasonable 

interpretations of ambiguous provisions.”65 Dismissal is “‘proper only if 

[Talkdesk’s] interpretation is the only reasonable construction as a matter of law.’”66 

Arrive must establish an “express contractual obligation that was breached” 

to proceed on a breach of contract claim.67 For example, in Ryan v. Buckeye 

Partners, L.P.,

68 the Court of Chancery dismissed a breach of contract claim where 

the plaintiff failed to cite any provision of the contract that was purportedly 

breached.69 The court noted that “[t]his failure is not a technical foot fault; it reflects, 

63 Khushaim v. Tullow Inc., 2016 WL 3594752, at *3 (Del. Super. June 27, 2016) (citing 

eCommerce Indus., Inc. v. MWA Intel. Inc., 2013 WL 5621678, at *13 (Del. Ch. Sept. 30, 2013)).

64 Sorantino v. Newton, 2019 WL 2355018, at *1 (Del. Super. June 4, 2019) (citing Shah v. Am 

Sols., Inc., 2012 WL 1413593, at *2 (Del. Super. Mar. 8, 2012)).

65 VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 615 (Del. 2003) (citing Vanderbilt 

Income & Growth Assocs. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613 (Del. 1996)).

66 Khushaim, 2016 WL 3594752, at *3 (quoting Vanderbilt Income & Growth Assocs., 691 A.2d 

at 613) (emphasis in original).

67 Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 901 A.2d 106, 116 (Del. 2006).

68 2022 WL 389827 (Del. Ch. Feb. 9, 2022).

69 Id. at *6.
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instead, a fundamental failure to give the [defendants] fair notice of the claim 

asserted against them[.]”70

The Court holds that Arrive fails to allege specific contractual provisions or 

obligations that Talkdesk breached, with the exception of the requirements of 

Availability. The Court acknowledges that notice pleading is sufficient for a breach 

of contract claim at the motion to dismiss stage.

71 Nonetheless, generalized 

grievances over the performance of Talkdesk’s product fail to put Talkdesk on notice 

of how it breached the Agreement. Without clear terms in the Agreement detailing 

performance expectations Arrive cannot allege a breach of those requirements. 

For example, “[f]ailing to provide the correct and proper solutions to allow 

Arrive to conduct its business”72 is entirely too vague and subjective to allow 

Talkdesk to prepare any defense. Similarly, “[f]ailing to provide the service required 

under the Agreement as evidenced by constant service connection issues, audio 

failures, stuck call statuses, inaccurate usage recording, and the inability to 

effectively support hard phones (SIP devices)”73 is not specifically tied to any 

contractual provision that the parties bargained for and agreed to. Like in Ryan, the 

70 Id.

71 See, e.g., VLIW Tech., 840 A.2d at 611 (internal quotations omitted) (“In alleging a breach of 

contract, a plaintiff need not plead specific facts to state an actionable claim. Rather, a complaint 

for breach of contract is sufficient if it contains ‘a short and plain statement of the claim showing 

that the pleader is entitled to relief.’”).

72 Countercl. ¶ 55.

73 Id.
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Court finds that there is insufficient notice to Talkdesk as to how it breached the 

Agreement as to all but the Availability allegations. If Arrive wanted specific 

product performance, it needed to be bargained for in the terms of the contract. The 

Court will not read in contract expectations that Arrive failed to negotiate for because 

Arrive is not satisfied with the result. 

The only claim that survives the Motion to Dismiss is the “Availability” 

provision. Schedule C of the Agreement sets forth the “Minimum service level 

commitment” that “Talkdesk shall maintain 100% monthly minimum availability 

for the Talkdesk Service[.]”

74

 The Agreement further defines “Availability” as “if:

(1) the Customer is able to make and receive voice calls and (2) call quality is 

sufficient to allow participants in calls to hear and understand each other.”75 The 

availability is further calculated as:

76

 

The Agreement allows Arrive to terminate the Agreement “[i]n the event (a) 

Talkdesk Service fails to achieve 98% Availability for three consecutive months, or 

(b) Talkdesk Service is unavailable for more than 24 consecutive hours for two 

consecutive months[.]”77

74 The Agreement, Schedule C (2).

75 Id. at Schedule C (3)(a).

76 Id. at Schedule C (3)(b).

77 Id. at Schedule A Order Form.
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Arrive pleads that there were issues with making and receiving voice calls, 

and the quality of those calls.

78

 The Court determines that the liberal pleading 

standard79 has been met regarding a failure to achieve 98% Availability at this stage. 

Talkdesk’s skepticism as to whether “directly and negatively impacted” is sufficient 

to meet the definition of “Availability” and the corresponding calculation is a 

question better reserved for after discovery. The Court therefore denies the Motion 

to Dismiss as to the issue of “Availability” but grants the motion as to all other 

allegations of breach not tied to a specific contractual obligation.

3. Arrive has sufficiently pled notice, and the Court declines to decide on 

the futility of the notice requirement at this stage.80

The Agreement provides that Arrive can terminate the Agreement in three 

ways.81 The first is for failure to achieve 98% Availability for three consecutive 

months “with written notice to Talkdesk within 30 days of such event.”82 It 

continues: “Termination as provided under this clause, if elected, is Customer’s sole 

78 E.g., Countercl. ¶ 39 (“Business Development and Carrier Sales team members regularly 

reported dropped connections, resulting in lost calls;” “Business Development and Carrier Sales 

team members regularly encountered issues on calls where either they or the person on the other 

end of the line could not hear”), ¶ 40 (“The connection failures, audio issues, stuck status situations, 

and lack of effective hard phone integration directly and negatively impacted the Availability of 

the Talkdesk Service at Arrive”), ¶ 55 (“Failing to achieve 98% Availability for any month during 

the parties’ relationship”).

79 See, e.g., VLIW Tech., 840 A.2d at 611 (citing Michelson v. Duncan, 407 A.2d 211, 217 (Del. 

1979)).

80 This section will assume that a material breach of the agreement has occurred and solely address 

the applicability of the notice requirements.

81 Pl.’s Br. at 23. 

82 The Agreement, Schedule A Order Form.
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remedy.”83 The second termination option is in Schedule C, wherein the Agreement 

provides:

If the Customer believes the Talkdesk Service has not met the minimum 

service level commitment in a given month, the Customer may request 

an SLA credit as detailed in the table below. To be eligible for an SLA 

credit, the Customer must deliver its request for an SLA credit no later 

than 7 days after the end of the month for which the SLA credit is 

requested and must include in its request a detailed description of the 

time and circumstances during which the Talkdesk Service was 

unavailable.84

The third option is detailed in § 13.3 of the Agreement, stating: “Either party may 

terminate the Service Term upon at least thirty (30) days prior written notice in the 

event (1) the other party has materially breached this agreement and such breach 

remains uncured at the expiration of such thirty (30) day period . . .”85 

Talkdesk argues Arrive did not provide notice sufficient for any of the three 

options.86 Arrive argues it did provide notice because “Arrive was in constant 

communication with Talkdesk regarding the technical issues and lack of availability, 

giving Talkdesk both notice and the opportunity to cure.”87

83 Id.

84 Id. at Schedule C (4).

85 The Agreement, § 13.3

86 Pl.’s Br. at 23–24. Talkdesk also asserts in its Reply Brief that Arrive conceded it failed to give 

proper notice in its Opposition. Pl.’s Reply at 19. The Court does not agree with that 

characterization. Arrive appears to argue that it did give notice, but if the Court does not find 

notice, then in the alternative it argues that notice was futile and thus excused. Def.’s Opp’n at 

26–27.

87 Def.’s Opp’n at 26 (citing Countercl. ¶¶ 42–49).
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The Court notes that both the Schedule A Order Form and Schedule C(4) 

discuss notice as a requirement in order to obtain a “credit.” Arrive does not seek a 

“credit” as is outlined in the Agreement; therefore, the Court deems these two notice 

provisions inapplicable to the challenged action seeking monetary damages. Arrive 

is precluded from seeking a remedy pursuant to either “credit” option. 

Unlike the Schedule A Order Form and Schedule C(4), the unambiguous 

terms of § 13.3 do not tie a remedy to any designated credit, and instead § 13.3

broadly addresses “termination.” Arrive alleges that on July 12, 2023, Arrive sent a 

termination letter, giving Talkdesk 30-days advance notice of termination.88 The 

Court thus finds at the very least, Arrive has sufficiently pled it complied with the 

notice requirement indicating a material breach as of July 12, 2023. 

The Court notes that Arrive pled that, prior to July 12, 2023, Arrive contacted 

Talkdesk with problems, but never provided notice pursuant to § 13.3 until July 12, 

2023.

89

 The length of time to which Arrive can credibly plead prior to July 12, 2023 

that Talkdesk materially breached the Agreement based on the termination letter is 

a question of fact.90

If Arrive seeks to assert breach based on conduct not indicated in the 

termination letter, but still within the confines of the allowable narrowed claim for 

88 Countercl. ¶ 50.

89 Id. at ¶¶ 42–49.

90 “[M]aterially breached” is not a defined term in the Agreement.
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Availability, Arrive may proceed to discovery on the issue of whether or not notice 

would have been futile. Arrive asserts in the alternative, allowing additional time to 

cure would have been futile given Arrive’s previous notices to Talkdesk about the 

issues. 91

Courts have applied a “two-part test for determining whether a notice and cure 

provision was futile: (i) where ‘the defaulting party expressly and unequivocally 

repudiates the contract,’ or (ii) ‘where the actions of the defaulting party have 

rendered future performance of the contract by the defaulting party impractical or 

impossible.’”92 To the extent Arrive may rely on futility, the Court deems the issue

a question of fact and not appropriate for decision at the motion to dismiss stage.93

B. UNCONSCIONABILITY

An unconscionable contract is “one which ‘no man in his senses and not under 

delusion would make on the one hand, and as no honest or fair man would accept, 

on the other.’”94 For a court to find unconscionability, “there must be an absence of 

91 Def.’s Opp’n at 26–27. 

92 Optical Air Data Sys., 2019 WL 328429, at *4 (quoting Cornell Glasgow, LLC v. LaGrange 

Props., LLC, 2012 WL 6840625, at *13 (Del. Super. Dec. 7, 2012)). 

93 Relatedly, Talkdesk moves to dismiss Counterclaim Count (2) for Declaratory Judgment 

regarding the validity of the termination. Both parties agree the declaratory judgment claim rises 

and falls with the breach of contract claim. While it is unclear what relief Talkdesk seeks that is 

different than its breach of contract claim, the Court will nonetheless let Count (2) proceed as it 

relates to termination for failure to achieve “Availability.”

94 Ketler v. PFPA, LLC, 132 A.3d 746, 748 (Del. 2016) (quoting Rsrvs. Mgmt., LLC v. Am. Acq. 

Prop. I, LLC, 86 A.3d 1119 (TABLE), 2014 WL 823407, at *9 (Del. 2014)).
18

meaningful choice and contract terms unreasonably favor[] one of the parties.”95 A 

“mere disparity between the bargaining powers of parties to a contract will not 

support a finding of unconscionability.”96 Courts should “sparingly” find 

unconscionability97 because it “requires a finding that ‘the party with superior 

bargaining power used it to take unfair advantage of its weaker counterpart’” and 

“its terms must be so one-sided as to be oppressive.”98 Unconscionability is 

determined at the time the contract was formed99 and is classified as either 

substantive or procedural; either are sufficient for a cause of action.100 

Talkdesk quotes Arrive’s description of itself as evidence that Arrive is a 

“sophisticated party in a strong position that flatly contradicts [Arrive’s] claim that 

the parties held unequal bargaining power in their contracting relationship.”101 

Talkdesk notes that, despite Arrive claiming it was under pressure from the 

pandemic, “it still spent three months reviewing proposals and negotiating contract 

terms with Talkdesk” which shows that the negotiation and resulting contract was 

95 Tulowitzki v. Atlantic Richfield Co., 396 A.2d 956, 960 (Del. 1978).

96 Rsrvs. Mgmt., 86 A.3d 1119 (TABLE), 2014 WL 823407, at *9 (citing Tulowitzki, 396 A.2d at 

960)).

97 Ketler, 132 A.3d at 748 (citing Progressive Int’l Corp. v. E.I. Du Pont de Nemours & Co., 2002 

WL 1558383, at *11 (Del. Ch. July 9, 2002)).

98 Andor Pharms., LLC v. Lannett Co., 2024 WL 1855112, at *16 (Del. Super. Apr. 29, 2024) 

(quoting Progressive Int’l Corp., 2022 WL 1558382, at *11).

99 James v. Nat’l Fin., LLC, 132 A.3d 799, 814 (Del. Ch. 2016) (citing Lecates v. Hertrich Pontiac 

Buick Co., 515 A.2d 163, 173 (Del. Super. 1986)).

100 See id. at 815 (internal citations omitted) (“The two dimensions of unconscionability do not 

function as separate elements of a two prong test. The analysis is unitary, and ‘it is generally 

agreed that if more of one is present, then less of the other is required.’”).

101 Pl.’s Br. at 17–18.
19

not unconscionable.102 Arrive denies this and argues the pandemic “put Arrive at a 

significant disadvantage to make a ‘meaningful choice,’ and resulted in Talkdesk 

driving the negotiations and bargaining” (procedural unconscionability).

103

 Arrive 

further asserts that Talkdesk intentionally oversold Arrive a product that did not suit 

Arrive’s needs (substantive unconscionability).

104

 

With regard to the procedural unconscionability, Talkdesk reinforces that “[i]f 

anything, the Counterclaims depict Arrive as the party in the stronger bargaining 

position here given that [Arrive] had multiple other providers competitively bidding 

for its telecommunications needs and Talkdesk was merely one of ‘a number of 

potential vendors.’”105 Talkdesk disputes that there is substantive unconscionability 

because Arrive fails to cite which term(s) of the Agreement are unfair, or how they 

are “shockingly unfair terms that warrant having the court intervene[.]”106

1. Arrive fails to plead substantive unconscionability.

Substantive unconscionability considers “if the terms evidence a gross 

imbalance that ‘shocks the conscience.’”107 To find substantive unconscionability, 

“the court will look to see if the terms of the contract were ‘atypical in the local 

102 Id. at 18.

103 Def.’s Opp’n at 22.

104 Id. at 22–23.

105 Pl.’s Reply at 15 (emphasis in original).

106 Id. at 16.

107 James, 132 A.3d at 815 (internal citations omitted).
20

business community.’”108 A court can consider six factors: (1) a significant costprice disparity or excessive price; (2) the denial of basic rights and remedies; (3) 

penalty clauses; (4) the placement of disadvantageous clauses in inconspicuous 

locations or among fine print trivia; (5) the phrasing of disadvantageous clauses in 

confusing language or in a manner that obscures the problems they raise; and (6) an 

overall imbalance in the obligations and rights imposed by the bargain.109

Arrive has failed to indicate what portions of the Agreement are 

unconscionable. Instead, Arrive only alleges that “the terms of the MSA provided 

Arrive access to Talkdesk’s highest-priced solution, which Talkdesk knew was not 

going to meet Arrive’s operational needs.”110 In the paragraphs from the 

Counterclaim that Arrive cites to support its substantive unconscionability 

argument, Arrive describes what it was hoping to purchase, and what it received 

from Talkdesk’s products, but cited no portion of the Agreement itself.111 Arrive 

also fails to provide any comparable case where a contract was found to be 

substantively unconscionable because the product bargained for did not meet the 

negotiated qualifications. Arrive has failed to plead any of the six factors for 

substantive unconscionability, to demonstrate that the terms of the agreement would 

108 Rummel Klepper & Kahl, LLP v. Delaware River & Bay Authority, 2022 WL 29831, at *14 

(Del. Ch. Jan. 3, 2022) (citing Tulowitzki, 396 A.2d at 960).

109 James, 132 A.3d at 815–16 (citing Fritz v. Nationwide Mut. Ins. Co., 1990 WL 186448, at *4–

5 (Del. Ch. Nov. 26, 1990)).

110 Def.’s Opp’n at 22.

111 See id. (citing Countercl. ¶¶ 44–49, 67, 76–78, 86–89, 91, 100).
21

shock the conscience. Even if the Court credits that Talkdesk knew the product 

would not suit Arrive’s needs, Arrive does not explain how the terms of the contract 

themselves amount to an unfair agreement.

2. Arrive fails to plead procedural unconscionability.

Procedural unconscionability “examines the procedures that led to the 

contract with the goal of evaluating whether seemingly lopsided terms might have 

resulted from arms’-length bargaining.”112 Courts will look at the “‘relative 

bargaining strength of the parties and whether the weaker party could make a 

meaningful choice.’”113 Courts consider factors including: (1) “[i]nequality of 

bargaining or economic power;” (2) “[e]xploitation of the underprivileged, 

unsophisticated, uneducated, and illiterate;” (3) “[t]he use of printed form or 

boilerplate contracts drawn skillfully by the party in the strongest economic position, 

which establish industry-wide standards offered on a take it or leave it basis to the 

party in a weaker economic position;” and (4) “[t]he circumstances surrounding the 

execution of the contract, including its commercial setting, its purpose, and actual 

effect.”114 “[T]he court must find that the party with the superior bargaining power 

used this disparity to take advantage of the weaker party, resulting in terms being 

112 James, 132 A.3d at 815.

113 Chemours Co. v. DowDuPont Inc., 2020 WL 1527783, at *12 (Del. Ch. Mar. 30, 2020) (citing 

James, 132 A.3d at 815)).

114 James, 132 A.3d at 826 (citing Fritz, 1990 WL 186448, at *4–5).
22

‘so one-sided as to be oppressive.’”115 Delaware courts have been “particularly 

reluctant to find unconscionability in contracts between sophisticated 

corporations.”116

Arrive describes itself as a “leading North American freight broker” that has 

received “excellent customer service” praise, “has been recognized as a top 

workplace by Inc., Fortune, Great Place to Work, the Austin American-Statesman 

and The Chicago Tribune” and has been awarded Carrier of the Year by several 

others.117 Arrive is also one of “the largest firms in the freight brokerage industry 

with more than 2,000 employees, 6,000 customers, and 38,000 active motor carriers 

in its network and 70,000 motor carriers under contract.”118 This description alone 

suggests that Arrive is a sophisticated party, not one in an unequal bargaining 

position. Arrive has not demonstrated that there is any unfair bargaining power 

between itself and “a cloud-based call-center software provider.”119

Arrive’s reliance on the pressures of the COVID-19 pandemic are similarly 

unconvincing. This Court recognizes the significant impact that the pandemic had 

across the globe, but Arrive has failed to indicate how Arrive was uniquely impacted 

in a way that all other in-person workplaces forced to shift to work-from-home 

115 Rummel Klepper & Kahl, LLP, 2022 WL 29831, at *15 (citing Graham v. State Farm Mut. 

Auto Ins., Co., 565 A.2d 908, 912 (Del. 1989)).

116 Rsrvs. Mgmt., 86 A.3d 1119 (TABLE), 2014 WL 823407, at *9 (internal citations omitted).

117 Countercl. ¶ 5.

118 Id. ¶ 7.

119 Id. ¶ 6.
23

solutions were not. The Court has reviewed Arrive’s description of its work process 

and understands that shifting to a service provider during the pandemic may have 

been crucial to its business, but that is the extent that the pandemic is relevant.

Arrive “engaged with a number of potential vendors” and asked “more than 

150 questions” to each vendor to determine their capabilities.120 Talkdesk was “one 

of the potential providers” that Arrive considered between April and June 2020.121 

The parties met and communicated several times over the three month period to 

discuss solutions and Arrive’s needs before entering into the contract.122 The Court 

fails to see how there was any imbalance of bargaining power between two 

sophisticated parties. Arrive had multiple options for vendors, took three months to 

sign an agreement, and was, in the interim, managing to maintain its business 

practices, however inconvenient or inefficient it may have been. 

This is not the case of a business that was forced to shut down entirely, nor 

does Arrive plead that it had to immediately enter into an agreement with Talkdesk 

because Arrive had no other options. The COVID-19 pandemic undoubtedly caused 

complications for Arrive, but the Court does not find that “one of the largest firms 

in the freight brokerage industry” was at such an unequal bargaining power when 

conversing with multiple vendors across multiple months that Arrive “could not 

120 Id. ¶ 20.

121 Id. ¶ 21.

122 Id. ¶¶ 23–31.
24

make a meaningful choice.” The Court declines to find procedural unconscionability 

present under these facts. Counterclaim Count (4) is therefore dismissed.

C. FRAUD IN THE INDUCEMENT

To sufficiently plead a claim for fraud in the inducement, the plaintiff must 

allege: “‘1) a false statement or misrepresentation; 2) that the defendant knew was 

false or made with reckless indifference to the truth; 3) the statement induced the 

plaintiff to enter the agreement; 4) the plaintiff’s reliance was reasonable; and 5) the 

plaintiff was injured as a result.’”

123

 “To establish th[e] requisite scienter, a plaintiff 

can show the defendants either ‘committed the misstatement recklessly or with 

intent.’”

124

 Recklessness is not “merely simple, or even inexcusable negligence, but 

an extreme departure from the standards of ordinary care[.]”

125

Talkdesk seeks to dismiss the fraud in the inducement claim for three reasons: 

(1) the claim is foreclosed by the contract’s integration clause; (2) the economic loss 

doctrine bars recovery; and (3) Arrive’s fraud in the inducement claim is not pled 

with specificity as required by Superior Court Civil Rule 9(b). The Court finds that 

although the integration clause lacks anti-reliance language that explicitly provides 

123 ITW Glob. Invs. Inc. v. Am. Indus. P’rs Cap. Fund IV, L.P., 2017 WL 1040711, at *6 (Del. 

Super. Mar. 6, 2017) (quoting In re Student Fin. Corp., 2004 WL 609329, at *7 (D. Del. Mar. 23, 

2004)).

124 Great Hill Equity P’rs IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at *32 

(Del. Ch. Dec. 3, 2018) (quoting Deloitte LLP v. Flanagan, 2009 WL 5200657, at *8 (Del. Ch. 

Dec. 29, 2009) (emphasis in original).

125 Deloitte, 2009 WL 5200657, at *8.
25

that a party is not relying on any extra-contractual relations, Arrive’s fraud claim 

still fails. This is because the essence of Arrive’s Counterclaim is based on future 

performance, and the integration clause prevents the Court from finding justifiable 

reliance. Thus, the Court need not reach the issue of the economic loss doctrine.

As a preliminary matter, Talkdesk argues that Sections 11.1 and 15.10 of the 

Agreement, when read together, preclude Arrive’s fraud in the inducement claims. 

Section 11.1 of the Agreement states:

Customer acknowledges and agrees that the services, marketplace and 

documentation are provided on an ‘as is’ basis and Talkdesk does not 

make any and hereby specifically disclaims any representations, 

endorsements, guarantees, or warranties, express or implied, including, 

without limitation, any of merchantability, fitness for a particular 

purpose, title, or nonfringement of intellectual property rights. Content 

and early access services are provided ‘as is,’ and as available exclusive 

of any warranty whatsoever.126

Section 15.10 of the Agreement (the “Integration Clause”) reads:

This Agreement constitutes the entire and sole agreement among the 

parties with respect to the subject matter hereof and supersedes any 

previous and contemporaneous verbal agreements, negotiations, 

understandings, or other matters, whether oral or written, with respect 

to the subject matter hereof.127

To be effective, merger or integration clauses must clearly disclaim reliance 

upon extra-contractual statements.128 “[S]tandard integration clauses without 

126 The Agreement at § 11.1.

127 Id. at § 15.10.

128 See, e.g., Abry P’rs V, L.P. v. F & W Acq. LLC, 891 A.2d 1032, 1058–59 (Del. Ch. 2006).
26

explicit anti-reliance representations, will not relieve a party of its oral and extracontractual fraudulent representations.”129

 To sufficiently bar fraud in the 

inducement, an integration clause “must contain language that, when read together, 

can be said to add up to a clear anti-reliance clause by which the plaintiff has 

contractually promised that it did not rely upon statements outside the contract’s four 

corners in deciding to sign the contract.”130 Delaware case law, since Kronenberg 

v. Katz,

131 has developed a well-worn path for parties wishing to disclaim reliance 

on extra-contractual representations. Put simply, the Integration Clause here, even 

when read with Section 11.1, does not amount to a clear “anti-reliance” provision.132

This, however, does not end the inquiry. Talkdesk argues that Arrive’s fraud 

claims must fail because Arrive fails to plead justifiable reliance.133 The Court 

agrees. “[W]hether a party’s reliance was reasonable is not generally suitable for 

resolution on a motion to dismiss.”134 Nonetheless, “Delaware courts have found a 

lack of justifiable reliance at the pleading stage when the dispute involves alleged 

129 Id. at 1059 (citing Kronenberg v. Katz, 872 A.2d 568, 593 (Del. Ch. 2004)).

130 Kronenberg, 872 A.2d at 593.

131 872 A.2d 568 (Del. Ch. 2004)

132 Compare Prairie Capital III, L.P. v. Double E Hldg. Corp., 132 A.3d 35, 50–51 (Del. Ch. 2015) 

(holding that the Exclusive Representations Clause and Integration Clause together identified 

“with sufficient clarity the universe of information on which the contracting parties relied,” and 

therefore “add[ed] up to a clear anti-reliance clause.”).

133 Pl.’s Reply at 6–10.

134 S’holder Rep. Srvs. LLC v. Albertsons Co., 2021 WL 2311455, at *11 (Del. Ch. June 7, 2021) 

(quoting TrueBlue, Inc. v. Leeds Equity P’rs IV, LP, 2015 WL 5968726 (Del. Super. Sept. 25, 

2015)).
27

prior misrepresentations or omissions that run expressly counter to the terms of a 

fully integrated contract.”135 Two cases establish this point.

In Black Horse Capital, LP v. Xstelos Holdings, Inc.,

136 the Court of Chancery 

dismissed a fraud claim because there was no justifiable reliance on the allegedly 

fraudulent statements.137 Plaintiffs alleged that defendants promised in 2010 that “if 

Plaintiffs would make the [loan], Defendants would give an additional [defined 

interest.]”138 The court held that it “is not reasonably conceivable that Plaintiffs 

justifiably could have relied on that December 2010 promise as being enforceable 

while executing multiple written agreements on January 3, 2011 in which Plaintiffs 

disclaimed any and all prior promises, agreements, or understandings[.]”139 The 

court distinguished this finding on the “future promise” compared to other cases 

“which dealt with materially incorrect financial statements, reliance on which caused 

the plaintiff buyers to overestimate how much the target company was worth.”140

Shareholder Representative Services LLC v. Albertsons Companies, Inc.,

141

relied on Black Horse when it similarly found that an integration clause prevented 

the court from finding justifiable reliance.142 The Court of Chancery held that “the 

135 Id. at *11 (internal citations omitted).

136 2014 WL 5025926 (Del. Ch. Sept. 30, 2014).

137 Id. at *22.

138 Id.

139 Id.

140 Id. at *25.

141 2021 WL 2311455 (Del. Ch. June 7, 2021).

142 Id. at *12.
28

plain terms of the Merger Agreement contradict the alleged misrepresentations on 

which [Plaintiff] claims it relied.”

143

 “As distinguished from a claim of extracontractual fraud based on a statement of fact, the fraud claim based on ‘future 

promises’ amounts to an improper attempt to introduce ‘parol evidence that would 

vary the extant terms in the subsequent integration writings.’”144 The plaintiff 

alleged it was promised it would have the exclusive right to make all business 

decisions, but the contract signed after the promise did not contain any such 

promise.145 Had the plaintiff wanted contractual commitments as to how the parties 

would operate post-contract, plaintiff “could and should have bargained for those 

commitments[.]”146

There is no dispute that Section 15.5 of the Agreement is an integration clause 

applicable to both parties. Like in Albertsons, if Arrive wanted to ensure it was 

getting a particular product or service, Arrive “could and should have” specifically 

bargained for those requirements to be outlined in the contract.147 Arrive, although 

upset with the services it received, “cannot now claim fraud as the basis to avoid the 

143 Id.

144 Id. (quoting Black Horse, 2014 WL 5025926, at *24).

145 Id.

146 Id. at *13.

147 See Black Horse, 2014 WL 5025926, at *25 (“There is . . . considerable support in logic and 

the law for the notion that it is efficient to hold parties to the promises they make in an integrated 

writing, and only those promises.”).
29

deal it made in favor of the deal it now wishes it made.”

148

 Counterclaim Count (5) 

is therefore dismissed.

D. UNJUST ENRICHMENT

Unjust enrichment refers to the “‘unjust retention of a benefit to the loss of 

another, or the retention of money or property of another against the fundamental 

principles of justice or equity or good conscience.’”149 Unjust enrichment “can 

operate either as a cause of action or as a remedy.”150 To plead an unjust enrichment, 

the plaintiff must assert: “(1) an enrichment, (2) an impoverishment, (3) a relation 

between the enrichment and the impoverishment, [and] (4) the absence of 

justification[.]”151 

A claim for unjust enrichment must be dismissed “if there is a contract that 

governs the relationship between parties that gives rise to the unjust enrichment 

claim.”152 “‘[I]f recovery is possible under the contract,’ then the contract controls 

and a duplicative unjust enrichment claim will be dismissed as an attempt to obtain 

148 Albertsons, 2021 WL 2311455, at *13 (internal quotation omitted).

149 In re Verizon Coverage Appeals, 222 A.3d 566, 577 (Del. 2019) (quoting Nemec v. Shrader, 

991 A.2d 1120, 1130 (Del. 2010)).

150 Garfield on behalf of ODP Corp. v. Allen, 277 A.3d 296, 341 (Del. Ch. 2022). “It remains 

possible that even if the court dismissed the substantive claim for unjust enrichment, the court still 

could award a restitutionary remedy that could be described as a remedy for unjust enrichment.” 

Id. (citing Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213–14 (2002)).

151 Nemec, 911 A.2d at 1130 (citing Jackson Nat. Life Ins. Co. v. Kennedy, 741 A.2d 377, 394 

(Del. Ch. 1999)). See also State ex rel. Jennings v. Monsanto Co., 299 A.3d 372, 391 (Del. 2023) 

(“The absence of an adequate remedy at law is required only if an unjust enrichment claim is 

brought in the Court of Chancery and there is no other independent basis for equitable 

jurisdiction.”).

152 Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 891 (Del. Ch. 2009).
30

double recovery.”153 Where the enforceability of the contract is called into question 

by the pleadings, an unjust enrichment claim may be pled as an alternative to a 

breach of contract claim.154 Another exception to the duplicative limitation is where 

the contract itself is the unjust enrichment.155 An unjust enrichment claim will not 

be dismissed at the motion to dismiss stage if “‘[t]he contract itself is not necessarily 

the measure of [the] plaintiff’s right where the claim is premised on an allegation 

that the contract arose from wrongdoing (such as breach of fiduciary duty or fraud) 

or mistake and the [defendant] has been unjustly enriched by the benefits flowing 

from the contract.’”156

Talkdesk asserts that the claim for unjust enrichment must be dismissed 

because the Agreement governs the parties’ relationship.157 Rather than pleading 

the unjust enrichment as an alternative, Talkdesk points out that Arrive’s allegations 

“are identical—they rely upon the same alleged conduct and the same damages.”158 

Arrive’s response to this criticism is two-fold. Arrive first asserts (in its Answering 

Brief, not its Counterclaim) that the Agreement itself is the unjust enrichment and 

153 Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *17 (Del. Super. Aug. 16, 2021) 

(quoting Envolve Pharmacy Sols., Inc. v. Rite Aid Hdqtrs. Corp., 2021 WL 140919, at *10 (Del. 

Super. Jan. 15, 2021)).

154 See, e.g., Khushaim, 2016 WL 3594752, at *8 (citing Albert v. Alex. Brown Mgmt. Servs., Inc., 

2005 WL 2130607, at *8 (Del. Ch. Aug. 26, 2005)).

155 LVI Grp. Invs., LLC v. NCM Grp. Hldgs., LLC, 2018 WL 1559936, at *16 (Del. Ch. Mar. 28, 

2018) (citing McPadden v. Sidhu, 964 A.2d 1262, 1276 (Del. Ch. 2008)).

156 Id. at *16 (internal citations omitted).

157 Pl.’s Br. at 18.

158 Id. at 19.
31

therefore the existence of the Agreement does not bar the claim.159 Arrive then 

claims that alternative pleading, which Arrive did here, is permitted when the 

enforceability of the contract is challenged, which Arrive argues (in its Answering 

Brief, not its Counterclaim) it did by pleading that the contract was 

unconscionable.160 Talkdesk reinforces that the claim for unjust enrichment is 

“derivative of its contract claim and thus fails.”161 

In Kuroda v. SPJS Holdings, L.L.C.,

162 the Court of Chancery dismissed a 

claim for unjust enrichment because the plaintiff’s relationship with the defendants 

was governed by an express contract.163 The plaintiff asserted that “defendants were 

unjustly enriched by the services ‘[the plaintiff] provided pursuant to the Consulting 

Agreement’” when they failed to pay him.164 The unjust enrichment claim, thus, 

“cannot lie alongside [the] breach of contract claim, [so] the unjust enrichment claim 

must be dismissed.”165

In LVI Group Investments, LLC v. NCM Group Holdings, LLC,

166 by contrast, 

the Court of Chancery declined to dismiss an unjust enrichment claim as duplicative 

159 Def.’s Opp’n at 32.

160 Id. at 33.

161 Pl.’s Reply at 22–23.

162 971 A.2d 872 (Del. Ch. 2009).

163 Id. at 891.

164 Id.

165 Id.

166 2018 WL 1559936 (Del. Ch. Mar. 28, 2018).
32

of the breach of contract claim.167 The plaintiff alleged that “it would never have 

entered into the agreement but for” defendant’s false statements.168 The court held 

that “because the Complaint adequately alleges that the [agreement] itself arose from 

the Defendant’s fraud, the existence of that contract does not bar the unjust 

enrichment claim.”169

The Court notes that the enforceability of the Agreement is not at issue 

because of the Court’s decision to dismiss the unconscionability count; therefore, 

Arrive’s argument that “the contract is unconscionable, and, therefore 

unenforceable,” fails.

170

 While Talkdesk argues that the unjust enrichment claim is 

based on the “same alleged conduct and the same damages” as the breach of contract 

claim,171 the Court holds that the unjust enrichment claim is merely a dressed up 

claim for fraudulent inducement. The only allegation in Count Six to support its 

unjust enrichment claim is as follows:

Talkdesk induced Arrive to enter into the Agreement with the 

understanding and promise that it would provide a Professional Plus 

product solution for all of Arrive’s business needs. Talkdesk has failed 

to live up to its obligations under the Agreement, and, therefore, has 

been unjustly enriched in over $6,500,000 throughout the course of the 

parties’ relationship.172

167 Id. at *17.

168 Id.

169 Id.

170 See supra Section V.B. 

171 Pl.’s Br. at 19.

172 Countercl. ¶ 97.
33

Similarly, the Fraud in the Inducement count contains the following 

allegation:

Talkdesk made the false representations about its Professional Plus 

product and intentionally failed to disclose material information about 

its capabilities to induce Arrive to execute the Agreement and oversell 

a more expensive product.173

The Court struggles to find any meaningful difference between these two 

allegations. Thus, although dressed up as a claim for “unjust enrichment,” the Court 

finds that this is also a claim for fraud—and it fails for the same reasons outlined 

above.174 Counterclaim Count (6) is therefore dismissed.

E. BREACH OF THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR 

PURPOSE

Implied warranty of fitness for a particular purpose requires a plaintiff to 

prove that “(1) she had a special purpose for the goods; (2) defendant knew or had 

reason to know of that purpose; (3) defendant knew or had reason to know that the 

plaintiff/buyer was relying on the seller’s superior skill to select goods that fulfilled 

that purpose; and (4) the plaintiff in fact relied on defendant’s superior skill.”175 

173 Id. ¶ 91.

174 The Court notes that in LVI, the Court of Chancery permitted the unjust enrichment claim as an 

alternative pleading to the fraud claim in that action. 2018 WL 1559936, at *16–17 (“If LVI were 

to succeed in establishing that the EPP Defendants committed (or conspired to commit) fraud, it 

would have an adequate remedy at law and unjust enrichment would be unnecessary. But LVI 

may be unable to prove those claims. In that case, unjust enrichment might be invoked.”). Here, 

the Court finds that the unjust enrichment claim is not in the alternative, but rather duplicative and 

identical, to the fraud claim. As such, dismissal is appropriate.

175 Johnson v. Sleepy’s Hldgs., L.L.C., 2015 WL 3429518, at *2 (Del. Super. May 28, 2015) (citing 

Atamian v. Ryan, 2006 WL 1816936, at *4 (Del. Super. June 9, 2006)).
34

Delaware allows parties to “exclude or modify any implied warranty of fitness” as 

long as the exclusion is in “writing and conspicuous.”176 “[U]nless the 

circumstances indicate otherwise, all implied warranties are excluded by expressions 

like ‘as is’, ‘with all faults’ or other language which in common understanding calls 

the buyer’s attention to the exclusion of warranties and makes plain that there is no 

implied warranty[.]”177

Section 11.1 of the Agreement outlines:

General Disclaimer. Customer acknowledges and agrees that the 

services, marketplace and the documentation are provided on an ‘as is’ 

basis and Talkdesk does not make any and hereby specifically disclaims 

any representations, endorsements, guarantees, or warranties, express 

or implied, including, without limitation, any of the merchantability, 

fitness for a particular purpose, title, or noninfringement of intellectual 

property rights. Content and early access services are provided ‘as is,’ 

and as available exclusive of any warranty whatsoever.178

Talkdesk asserts that the language of Section 11.1 is an exclusion of the 

implied warranty of fitness for a particular purpose and therefore this claim must be 

dismissed.179 Arrive argues that it has sufficiently pled under the low pleading 

standards an implied warranty of fitness for a particular purpose and “[a]ny questions 

regarding the provision in the MSA are questions of fact and, therefore, 

176 6 Del. C. § 2-316(2). “Language to exclude all implied warranties of fitness is sufficient if it 

states, for example, that ‘There are no warranties which extend beyond the description on the face 

hereof.’” Id.

177 6 Del. C. § 2-316(3)(a).

178 The Agreement, Schedule B § 11.1 (emphasis added).

179 Pl.’s Br. at 19–20.
35

inappropriate at the pleading stage.”180 Talkdesk responds that interpretation of an 

unambiguous contract, as is the case here, is a question of law, not fact, and therefore 

this Court can proceed to dismiss the claim.181

The only case Arrive relies on to avoid dismissal is insufficient to overcome 

an otherwise unambiguous contract term. While Anesthesia Services, P.A. v. 

Winters holds that “[f]actual issues cannot be resolved at the motion to dismiss 

stage,

182

 Arrive fails to explain how interpreting an explicit waiver of the implied 

warranty of fitness for a particular purpose in a contract is a factual issue. Delaware 

law has long considered contract interpretation a question of law, rather than a 

question of fact.183 “The Court will interpret clear and unambiguous terms according 

to their ordinary meaning.”184 A contract is ambiguous when “we may reasonably 

180 Def.’s Opp’n at 27–28 (citing Anesthesia Servs., P.A. v. Winters, 2010 WL 4056141, at *3 (Del. 

Super. Oct. 6, 2010)).

181 Pl.’s Reply at 20–21.

182 Anesthesia Servs., P.A., 2010 WL 4056141, at *3. This case deals with breach of contract 

issues, but does not deal with a breach of the implied warranty of fitness for a particular purpose 

at all.

183 See, e.g., Emmons v. Hartford Underwriters Ins. Co., 697 A.2d 742, 745 (Del. 1997) (“Under 

Delaware law, the interpretation of contract language is treated as a question of law.”) (internal 

citations omitted); Intel Corp. v. Am. Guarantee & Liab. Ins. Co., 51 A.3d 442, 446 (Del. 2012) 

(“‘[I]nterpretation of an insurance policy is a question of law and follows the general rules of 

contract interpretation.’”) (internal citations omitted); Pike Creek Recreational Servs., LLC v. New 

Castle Cty., 238 A.3d 208, 213 (Del. Super. 2020) (“[T]he only remaining questions are those of 

statutory and contract interpretation. Both topics are solely questions of law for the Court to 

decide.”) (internal citations omitted); OSI Sys., Inc. v. Instrumentarium Corp., 892 A.2d 1086, 

1090 (Del. Ch. Mar. 14, 2006) (“Under Delaware law, the ‘proper interpretation of language in a 

contract, while analytically a question of fact, is treated as a question of law both in the trial court 

and on appeal,’ and ‘judgment on the pleadings . . . is a proper framework for enforcing 

unambiguous contracts.’”) (internal citations omitted).

184 GMG Cap. Invs., LLC v. Athenian Venture P’rs I, L.P., 36 A.3d 776, 780 (Del. 2012) (citing 

Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del. 2009)).
36

ascribe multiple and different interpretations to a contract[.]”185 Arrive has not 

alleged that the Agreement is in any way ambiguous. The Court also cannot read 

any other reasonable interpretation than Talkdesk’s interpretation: “Talkdesk does 

not make any and hereby specifically disclaims . . . fitness for a particular 

purpose . . .”186 The use of “as is” language throughout Section 11.1 also reinforces 

the disclaimer by mirroring language suggested in the Delaware Code.187 The 

ordinary meaning of the Agreement is that the parties specifically disclaimed any 

claim for implied warranty of fitness for a particular purpose. As such, Counterclaim 

Count VII is dismissed.

F. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW

California’s Unfair Competition Law (“UCL”) prohibits “any unlawful, unfair 

or fraudulent business act or practice and unfair, deceptive, untrue or misleading 

advertising[.]”

188

Talkdesk argues that, since all claims should be dismissed at the motion to 

dismiss stage, Arrive has consequently also “failed to allege a cause of action under 

California’s UCL.”189 Arrive argues that it only needs to sufficiently plead one of 

185 Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1160 (Del. 2010) (citing Twin City Fire Ins. 

Co. v. Delaware Racing Ass’n, 840 A.2d 624, 628 (Del. 2003)).

186 The Agreement, § 11.1.

187 6 Del. C. § 2-316(3)(a) (stating “all implied warranties are excluded by expressions like ‘as 

is’”).

188 Cal. Bus. & Prof. Code § 17200, et seq.

189 Pl.’s Br. at 28.
37

an unlawful, unfair, or fraudulent business practice, and since Arrive asserts it has 

sufficiently pled its claim for fraudulent inducement, the violation of the UCL has 

also been pled.190 The Court notes that neither party argues for a choice of law 

analysis at this stage, and both sides rely on their success on the other claims to 

support their success as to the UCL. The Court, therefore, determines that Arrive 

has failed to state a claim as to a violation of the UCL because the Court has already 

determined that Arrive has not stated a claim as to fraudulent inducement.

VI. CONCLUSION

In conclusion, Plaintiff’s Motion to Dismiss Defendant’s Counterclaims is 

Granted in Part, and Denied in Part.

IT IS SO ORDERED.

190 Def.’s Opp’n at 33–34.