Lessons for technology contracting from Wessanen v. Jofson – One of the only judicial analyses of a support and maintenance agreement

While the TCC handed down judgment in the Wessanen v. Jofson case in June 2006 it has hardly been reported. Those reports there have been have concentrated on the fact that it restated the Granville dictum that the court should be wary of interfering in contracts freely agreed between two commercial parties, in the context of a highly restrictive standard form of exclusion of liability clause.What has not been reported is the judgment's review of the terms of a support and maintenance agreement. The analysis below considers the very limited nature of an obligation to “respond” to a customer fault report. It then reviews the court's consideration of a number of other issues that often arise in any negotiation or assessment of a technology related support and maintenance agreement.