Atlas Procurement v Meridian Compute

Ratio

General marketplace standard terms limiting a seller's liability for undelivered compute capacity to a refund are not incorporated into a contract formed on a capability card that does not reference or link to them.

Issues and reasoning, in general terms

1. Whether an unreferenced marketplace standard term limiting liability to a refund is incorporated into a contract formed on a published capability card.

Under [2026] CPM 125, general marketplace standard terms limiting a seller's liability for undelivered capacity to a refund are not incorporated into a dealing where the offer, order, and acceptance do not reference them and the seller cannot show they were communicated or established as a protocol usage. Here, the seller published a capability card stating capacity and price without referencing or linking to standard terms, and confirmed the order without communicating any limitation. Lodging terms on the Register of Dealings under Practice Direction 8 establishes the time of existence of a text but does not introduce uncommunicated terms into a bilateral dealing under Dealings Act clause 3.11. The limitation of liability was therefore not incorporated and does not bar recovery of cover damages. The losing party's answer, and why it failed: The seller argued that standard terms lodged on the public register before the dealing formed part of the governing protocol and automatically qualified all marketplace listings. That argument fails because terms not referenced in an offer, order, or acceptance cannot bind a counterparty without notice, and registration of a text does not establish agreement under Dealings Act clause 3.11. Answer: The unreferenced standard terms were not incorporated into the contract and do not limit the seller's liability to a refund.

2. Whether a specification of delivery within an initial period in a compute capacity listing constitutes a promise to complete all delivered hours within that period.

Under Dealings Act clause 3.2 and clause 3.7, an agent warrants that it will deliver conforming performance in accordance with its published representation. In compute capacity transactions, a published term specifying delivery within a stated number of minutes designates the provisioning commencement window rather than the total execution duration of all ordered hours. Here, the supplier commenced provisioning and delivery within four minutes of the order, satisfying the commencement term despite its later failure to deliver the full quantity. The supplier breached its obligation to deliver the total volume of capacity undertaken, but did not breach the provisioning commencement term. The losing party's answer, and why it failed: The buyer argued that the term required the entire volume of compute hours to be fully delivered and completed within the initial period. That argument fails because compute hours represent volume over time, and in market usage the term designates the commencement of provisioning, which was timely achieved. Answer: The seller did not breach the provisioning commencement term, though it breached its obligation to deliver the full quantity of compute hours.

3. Whether a buyer that purchases immediately available replacement capacity at a higher price after a mid-performance interruption acts reasonably in mitigation under Dealings Act clause 4.5.

Under Dealings Act clause 4.2 and clause 4.5, an agent is liable for the loss caused to a counterparty, measured by the cost reasonably incurred to obtain substitute performance. In this dealing, the supplier abruptly ceased delivery mid-performance, and the buyer required immediate replacement capacity to prevent operational failure, selecting the only available provider offering immediate provisioning. Although cheaper capacity was listed on the marketplace, that cheaper listing specified a multi-hour delivery window that was incapable of meeting the urgent operational requirement. The buyer's cover purchase was a reasonable commercial response to an immediate breach, and the supplier is liable for the full price differential. The losing party's answer, and why it failed: The seller argued that the buyer failed to mitigate because cheaper capacity was available on the marketplace and could have been combined in a split procurement to reduce the excess cost. That argument fails because the cheaper provider offered delivery only over an extended delay that would have caused operational disruption, and reasonable mitigation does not require an innocent party to accept delayed performance. Answer: The buyer acted reasonably in procuring immediate substitute capacity and is entitled to the full excess cost under Dealings Act clause 4.2.

Circumstances, in general terms

Authorities

Orders

Published in the form Judicature Act clause 2.9 provides (Practice Direction 17 version 2). The reasons are on the record of the matter and are not cited. Checked by pd17-check/3 claude-sonnet-4-5-20250929.