contract-law breach-of-contract
Refuse maintenance contract under explicit clause
<p>When I left my previous company and under some pressure, I end up with a signed maintenance contract. </p>

<p>I have requested a specific clause where the company needs to inform me before a specific software is updated by an external company. Because that update can break the app that I'm giving support for.</p>

<p>Now, one year later they request my support, because an external update, has created some serious issues in the application. This update was in 2018 and they don't notify me until now. </p>

<p>I already have an email where they confirm the date of the update as of June 2018.</p>

<p>My question is, can I use that clause to refuse give support? </p>

<p>Well I added it as a preventive measure because I already knew they would never notify me of anything. Only after something broken. That's what is happening.</p>

<h2>No</h2>

<p>By failing to notify you of the update they have breached the contract. This does not allow you to repudiate (end) the contract.</p>

<p>Repudiation is only valid if it is  breach of a condition of the contract or a serious breach of an intermediate term. The requirement to notify you is probably a warranty – maybe an intermediate term if it gave you the power to veto their upgrade. </p>

<p>A condition of the contract is a term so fundamental that if it is not complied with the contract has no effect. For your example, it might be an implied condition that they will not permanently delete the app and all its source code. A warranty is a lesser, minor or ancillary term, like your notification provision. An intermediate term is ... intermediate: if the breach is egregious enough it becomes a condition, if the breach is minor it is a warranty, for example, a payment date is an intermediate term – if someone is a week late in making payment it's a warranty, if they are a year late it's a condition.</p>

<p>If, by failing to notify you, you are required to incur additional expense to comply with your obligations under the contract then they must reimburse you for that additional expense.  Legally, these are the damages for the breach.</p>

<p>From your description, it seems like you agreed to do certain specified things for a company in exchange for money, and the contract specifies conditions on what they must do in order for them to be entitled to your services the advance notification clause). And now they appear to have breached the contract by not doing what they are required to do. So the question is whether they can legally force you to perform. They can always ask; you can always accept, or refuse.</p>

<p>If you refuse, they might say to themselves "We should have complied with the contract" and they make other arrangements. They might also offer you something extra to keep you on board (you can tell them what they have to pay you to fix the mess). That is, you can negotiate with them. Negotiating is preferable to lawyering up. Or they might sue you to force you to service their product. At which point you would hire an attorney to defend you, who would argue that the contract has been terminated by their breach.</p>

<p>One question would be whether breaching the notification clause is material. I can understand why you would want to prevent a third party from monkeying with a system in a way that makes your job much harder, but notifying you in advance does not obviously overcome that danger – it might if you additionally had some level of veto power over their decision to modify. Exactly how have you been harmed by their breach (don't tell me, tell the judge). They may argue that their non-notification is a minor breach. They might argue that non-notification was the result of an innocent mistake, but you could argue based on past behavior
that it is intentional or at least negligent. Another consideration is what the other side is obligated to perform at this point – were you paid in advance, or is service paid as the need arises (have you been paid for the necessary repairs)?</p>

<p>If negotiations fail, then lawyer up.</p>

<h2><strong>Maybe</strong></h2>

<p>This is going to depend on the exact wording of the notification provision you hasd inserted in the contract.  If that provision made notification essential to the contract. If that provision says that notification is essential, and that failure to notify voids the contract, then the other party knew that this was essential and if they broke this requirement, the contract is over. If it mere;y said that the client should notify the contractor whenever software XYZ is upgraded, that does not indicate that the notification is a condition of performance, or that failure to notify is  a material breach,  There are many ways that such a provision might be worded, withg different effects. </p>

<p>If the contractor is the one who drafted that provision, as the question implies, then any uncertainty would be resolved in favor of the client.</p>

<p>The contractor should also consider, what would s/he have done had the client given notice when the upgrade was done. Would that have changed things significantly? Or would the contractor have insisted on doing the upgrade or being involved? </p>

<p>Also, is such a provision reasonable? If an upgrade is needed ort strongly nadvised in the ordinary course of business, could the client reasonably be expected to notify the contractor when there was no current need for the contractor's services? Was the client expected to delay the upgrade pending the contractor's approval?</p>

<p>Also does the contractor really want to walk away from the contract, or really want an increased payment for extra trouble and work?</p>

<p>In any case, a useful answer is going to depend on the specifics of the contract, and of  the entire situation. It may well also depend on the specifics of the local law, and the question does not indicate the relevant jurisdiction. This question is really beyond the scope of a forum such as this. The contractor will need to consult an actual lawyer, and provide that lawyer with details of the contract and the situation, to get useful advice.</p>
