provides that "the pricing to the Distributor for licenses for the Software" will be as set out in Schedule A.
Clauses 7.2 and 7.3 provide:
"7.2 Pricing of Licences, Etc. [the Distributor] will be free to determine the price charged to Licensees for the Software and the price to be charged to Licensees for any MR Support or for the creation of MR Customizations provided by Master Reseller under MR Agreements...
7.3 ... Payment by [the Distributor] to [the Licensor] for Software licensed by Licensees will be due as follow: one hundred per cent (100%) is due with the submission of the DS-Key Request Form from [the Distributor] to [the Licensor], prior to [the Licensor] issuing a DS-Key."
A DS-Key is defined in Clause 1.1(d) as the hardware and software dongle which enables the software to function properly.
The pricing in Schedule A provides that the payments to be made to the Licensor by the Distributor shall be based on a Schedule 1A, but that the Distributor:
"shall receive a discount of ... 45% off the List Price for the Software and Tools ... that it purchases from [the Licensor] and provides to the Resellers and Licensees..."
Schedule A provides that:
"[the Distributor] will execute a DS-Key Request Form between [the Distributor] and [the Licensor]. [The Distributor] will collect all fees due and owing from Licensee in respect of the Software License Agreement and the MR Services Agreement and will remit applicable fees to [The Licensor]. [the Licensor] shall provide the DS-Keys to [the Distributor] upon receipt of appropriate documentation and fees."
I have not been shown Schedule 1A, and it has not be suggested to me that the DS-Key or any other item of hardware is separately priced
Clause 6.1 provides that the Distributor will submit Purchase Orders to the Licensor for the Software. I have not seen any examples of these.
Clause 15 of MRA provides:
"PROHIBITED PRACTICES[the Distributor] may not make any contracts or commitments on behalf of [the Licensor] nor make any representations, covenants, warranties or other representations regarding the Software other than those authorised herein or by [the Licensor] in writing."
Clause 18.13 provides:
"Independent Contractors. The parties to this Agreement are independent contractors and are not agents or representatives of each other. Neither party will have the power to bind the other, nor will either party misstate or misrepresent its relationship hereinunder."
In summary, as I find, the MRA makes provision for the supply primarily of software to an end user, but there is also some hardware to be provided in association with the provision of the software. At least that part of the hardware that is constituted by the DS-Key is to be provided to the end user only after the end user has become a party with the Licensor to the Software License Agreement.
The evidence of the Licensor includes the following, Mr Wood, the solicitor for the Licensor, states that the Distributor:
"purchased software licenses from [the Licensor] at a 45%