The appeal court threw away the Force Majeur argument because both actors demonstrably kept b'their activity going as usual and it would have been an argument in favor of Nacon anyway. Force Majeur would have justified them not fulfilling their part as a distributor but they demonstrably did.
The court stated that the termination of the contract wasn't legal because Frogwares had no basis to terminate it. Frogwares alleges that Nacon didn't pay them all they were due. Nacon disagrees and states that they correctly paid royalties minus the costs of distribution per the contract. Frogwares did ask to see proofs of these costs and gave Bacon a month to produce them. They then used Nacon's failure to do so as reason to terminate. However, as stated by the court, that was never what was planned in the contract. While Frogwares has a right to audit Nacon (which they didn't properly use), Nacon is under no obligation to send them arbitrary documents.
Note that it remains entirely possible that Nacon is actually underpaying Frogwares. It's just they went at it in an utterly stupid way.
In our email exchange, BBI/Nacon essentially wrote that the contract cannot be terminated because of the emergency laws in France, aimed to protect businesses during the COVID-19 pandemic, and at the same time BBI/Nacon refused to fulfill their obligations toward us (payment, documented reports, etc…).
That should cover the original decision of the court. The following seems to hint on the reasoning for the appeal:
– The “Emergency Laws explanation” actually triggers the Force Majeure article of our own contract, entitling us to terminate the agreement in case the parties could not minimize the effects of an Event of Force Majeure on this agreement for a period of 60 days.
Source:
https://frogwares.com/the-sinking-city-is-being-delisted-her...