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until January 1, 1986, when Burroughs completed the inventory
maintenance system for the National Software. HSN’s ability to
function during this initial startup phase was critical to its
survival and ultimately to its phenomenal success.
Respondent also argues that defects in the License Agreement
itself illustrate its sham nature. For example, respondent
points out that the agreement does not specifically identify the
“computer licenses, programs, tapes” that HSN was licensing from
Pioneer and that the agreement does not define “gross profits”.
Respondent also points out that Mr. Speer signed the agreement as
the president of Pioneer, even though he did not hold that title.
We find this argument unpersuasive. Although the License
Agreement may have been inartfully drafted, the evidence
indicates that the parties understood the term “computer
licenses, programs, tapes” to refer to the Local Software as
opposed to the financial accounting software and the term “gross
profits” to be used in its general accounting sense (i.e., sales
less returns, breakage, and cost of goods sold). Moreover, HSN
made payments to Pioneer, and Pioneer accepted these payments and
included them in income on its Federal income tax returns. We
think that any indefiniteness in the terms of the agreement was
cured by the parties’ subsequent performance. See 1 Williston on
Contracts, sec. 4:29 (4th ed. 1990).
Finally, the fact that Mr. Speer was not president of
Pioneer when he signed the License Agreement does not negate the
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