The parties disagreed about (1) whether those actions demonstrated that the parties modified the Contract and (2) whether that modification applied to invoice calculations moving forward. ♥ Adagio's acceptance of the credit and payment of invoices based on the 10.5% rate provided the crux of that litigation.
But eventually, Adagio refused to pay any more invoices under this rate-largely because using the 10.5% rate actually increased Adagio's shipping costs-and litigation followed. Kenco then sent-and Adagio paid-four post-credit invoices based on the same 10.5% rate used to calculate the credit. ♤ Once Kenco offered to provide a credit toward past paid and unpaid invoices through 2017 (in essence reimbursing Adagio as if it had paid for those invoices based on a 10.5% rate), Adagio accepted the credit, and the dispute regarding invoices up to that point was resolved. I would like to discuss when timing for getting caught up on the amounts still outstanding.Īdagio's response was short and to the point: Thank you for adjusting the pricing of all 2017 shipments. all 2017 shipments rather than open invoices. (Emphasis added.) (Cleaned up.) Kenco continued, I have accommodated what seemed to be the last area we were apart when we spoke, i.e. I have made a Credit Memo and I have included all shipments in 2017. Rather than adjusting invoices you agreed on last call that a Credit Memo would be acceptable. You then asked for it to include 2017 shipments, not just open invoices. You were not realizing at the time that meant back into 2016. Last call I had offered to extend that to open invoices, you had asked to go to the beginning. Kenco summarized these developments in an email: Originally when we discussed I had offered as a goodwill gesture to adjust calculations from October moving forward. (Emphasis added.) Kenco continued, "We appreciate your concern and feel we have found a way to address moving forward." (Emphasis added.) But Adagio was not satisfied and requested that any discount be applied retroactively. Kenco stated, "We are willing to make this change moving forward as we value you as a customer" and indicated that it would even be willing to recalculate the most recent invoice using that new baseline. ♣ Ultimately, Kenco offered to meet Adagio in the middle and proposed to charge based on a 10.5% rate.
4 After Adagio informed Kenco of its belief that Kenco had been overbilling, the parties engaged in lengthy negotiations regarding the terms of the Contract and the appropriate billing rate. The greater the savings, the greater Kenco's fee would be. The dispute boiled down to Adagio believing it would pay Kenco a portion of a 4% savings while Kenco believed Adagio would pay a portion of a 22% savings. However, after some time had passed, Adagio alleged that Kenco had been overbilling. ♢ To save money on shipping, Adagio entered into a contract (Contract) with Kenco in which Kenco would obtain shipping discounts for Adagio and Adagio would pay Kenco a portion of the resulting savings. On a motion for summary judgment, the district court determined that the parties had modified their original agreement and that Adagio had breached that modified agreement. Litigation ensued when a dispute arose again. Adagio applied this same agreed-upon rate to four invoices moving forward. After a dispute over calculating Kenco's fee for services arose, the parties eventually settled the dispute regarding outstanding invoices. (Adagio) contracted with iDrive Logistics LLC (Kenco 2) to assist it in obtaining reduced prices for shipping costs.
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