Auto-Chlor System of Minnesota, Inc. v. JohnsonDiversey (328 F. Supp. 2d 980, 2004)

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

Plaintiffs are eight commercial dish-washing dealers who signed Dealer Contracts with the Auto-Chlor System in the 1970s and 1980s. Defendant Auto-C, LLC, (“Auto-C”), a subsidiary of Defendant JohnsonDiversey, Inc. (“JohnsonDi-versey”), now owns the Auto-Chlor System, while Defendant DiverseyLever, Inc. (“DiverseyLever”), now known as DLever, owned the Auto-Chlor System from March 1999 until May 2002. Generally, the Dealer Contracts provide Plaintiffs with exclusive territories in which to use the Auto-Chlor System’s trademarks and products.

Plaintiffs’ principal claims are for breach of contract. They allege that Defendants have overcharged them for parts/equipment and chemical products and have violated their exclusive territory. They also allege claims of tortious interference with performance of contract, tortious interference with prospective contractual relations, trademark law violations, unfair competition, and promissory estoppel. Several motions are now before the Court seeking dismissal of all claims. For the reasons set forth below, the Court will grant the motions in part and dismiss all of Plaintiffs’ claims except: (1) Claim I (breach of contract with respect to Plaintiffs’ overcharging claims); and (2) Claim II (breach of the implied covenant of good faith and fair dealing with respect to Plaintiffs’ overcharging claims).

Background

I. The Auto-Chlor System

In the 1930s, Tennessee businessman James Robinson developed an automated commercial dishwashing system using low-temperature water, chlorine, and other chemicals. (See Brenner Decl. Exs. 15 (Griesbeck Dep. Tr. at 34:8-11), 18 (Merri-field Dep. Tr. at 49:3-50:14).) Eventually, Robinson turned his system of “automatic chlorinization” into the Auto-Chlor System (“ACS”), a Tennessee partnership. (Id. Ex. 18 (Merrifield Dep. Tr. at 49:4-10); Cosgrove Decl. Exs. 1-7 (Dealer Contracts).)

Robinson began by installing Auto-Chlor dishwashing machines, along with Auto-Chlor dishwashing chemicals, in restaurants. (See Brenner Decl. Exs. 12 (Eastman Dep. Tr. at 34:24-35:15); 17 (Ivy Dep. Tr. at 73:8-19).) As business grew, Robinson sold Auto-Chlor products through company-owned branches and independent dealers. (-See id. Ex. 13 (Fakes Dep. Tr. at 22:12-23:5, 105:9-106:10).) Robinson would sell his chemical products in a concentrate form to the branches and dealers. He kept the chemical make-up of the concentrates a secret, but provided the dealers with the formulas and specifications to mix the concentrates with raw materials to make the final products. No dealer ever received the formula of a secret Auto-Chlor concentrate. (Brenner Decl. in Opp’n to Pis.’ Mot. for Summ. J. ¶ 2, Exs. 1 (Alsup 10/29/03 Dep. Tr. at 14:23-15:25); 4 (M. Durham 7/31/03 Dep. Tr. at 33:6-36:25); 5 ' (Eastman 10/17/03 Dep. Tr. at 89:1-91:8); 6 (Fakes 8/14/03 Dep. Tr. at 42:1-4, 82:11-83:14, 83:20-84:6); 8 (Harding 11/20/03 Dep. Tr. at 145:24-146:13); 9 (Ivy 10/23/03 Dep. Tr. 123:5-124:23); 12 (McPhail 8/8/03 Dep. Tr. at 418:12-419:3); 13 (Merrifield 7/28/03 Dep. Tr. at 145:19-146:6); 14 (Poole 8/4/03 Dep. Tr. at 65:10-23); 15 (White/Stewart 8/28/03 Dep. Tr. at 391:13-392:3); 16 (Ver-tin 7/23/03 Dep. Tr. at 24:5-25:9).)

Branches and dealers sold or leased dishwashing machines to restaurant or institutional customers, serviced the equipment, and also sold related products, such as glass cleaners, hand soaps, and floor cleaners. (Cosgrove Decl. Exs. 51 (Donnell Dep. Tr. at 18:9-19:6); 60 (Ivy Dep. Tr. at 74:9-17, 76:1-4); 65 (Northcutt Dep. Tr. at 49:18-50:1).) Under Robinson, ACS treated its branches and the dealers identically (see id. Ex. 59 (Harding Dep. Tr. at 24:6-26:1)) and during his tenure, ACS sold parts and chemical concentrates at 10-15% above cost (id. Ex. 55 (Fakes Dep. Tr. at 13-14, 16)). But because Robinson “didn’t want [his business] to grow any faster than he wanted it to grow,” fewer than a dozen new products were created during his lifetime (Brenner Decl. Ex. 18 (Merrifield 7/28/03 Dep. Tr. at 85:24-25, 234:11-14)), and he did little promotion or advertising, (id. Exs. 8 (Alsup Dep. Tr. at 108:6-11); 18 (Merrifield 7/28/03 Dep. Tr. at 195); 21 (Poole Dep. Tr. at 123:2-15, 126:21-127:23); 22 (Vertin 7/23/03 Dep. Tr. at 262:3-11)).

II. The Dealer Contracts

Plaintiffs are eight ACS dealers who signed “Dealer Contracts” with ACS. (Cosgrove Decl. Exs. 1-7 (Dealer Contracts).) Four signed 1971 Dealer Contracts: Auto-Chlor System Incorporated of Denver (“ACS-Denver”), Auto-Chlor System of Kansas, Inc. (“ACS-Kansas”), Golden Light Equipment Company (“Golden Light”), and Auto-Chlor System of Jacksonville (“ACS-Jaeksonville”). (Cos-grove Decl. Exs. 2, 4, 5.) Two signed 1981 Dealer Contracts: Auto-Chlor System of Minnesota, Inc. (“ACS-Minnesota”) and Auto-Chlor System of West Texas, Inc. (“ACS-West Texas”). (Id. Exs. 6, 7.) And two signed 1984 Dealer Contracts: Auto-Chlor System of Fresno, Inc. (“ACS-Fresno”) and Auto-Chlor System of Albuquerque, Inc. (“ACS-Albuquerque”). (Id. Exs. 1, 3.)

The Dealer Contracts granted each Plaintiff an exclusive territory within which to use ACS’s trademarks and products. The 1971 Dealer Contract provides:

The Company hereby grants to Dealer the exclusive right to use the Registered Trademarks and Trade Names and the Company’s products within the boundary limits of the area herein specifically allotted as territory, but not elsewhere, and upon terms hereafter set forth....

(Cosgrove Decl. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 1).) Similar language appears in the 1981 and 1984 Dealer Contracts. (Id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 1).)

In return, Plaintiffs agreed to develop business in their territory. The 1971 Dealer Contracts obligate Plaintiffs:

(a) To work and develop to the satisfaction of the Company the ... specified territory ...

(b) To faithfully and diligently serve the territory so granted and to put forth the necessary effort to secure contracts for the use and distribution of the Company’s products.

(Id. Exs. 2, 4, 5) (1971 Dealer Contract ¶ 2.) Similar language also appears in 1981 and 1984 Dealer Contracts. (Id. Exs. 1, 3, 6, 7) (1981, 1984 Dealer Contracts ¶2.) Dealers must also “list in Dealer’s local Telephone Directory”, and at Dealer’s expense, the name ‘“AUTO-CHLOR SYSTEM.’” (Id. Exs. 2, 4, 5 (1971 Dealer Contracts ¶ 2(e)).) Similar language appears in the 1981 and 1984 Dealer Contracts. (See id. Exs. 1, 3, 6, 7) (1981,1984 Dealer Contracts ¶ 2(f).)

For its part, ACS agreed to

[A]t its own expense, continue its research for the purpose of advancing the art and improving the industry, but the Company shall be under no obligation to manufacture or distribute any article or product discovered, improved, or made, whether patented or not, or to sell such product to Dealer except that if the Company does discover, improve, or make an article or product not now in use in the field covered by this Contract, and desires to commercially market said article or product, Dealer shall have the right to represent the Company in Dealer’s Territory upon such terms as Company offers to others.

(Id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 11).) A nearly identical provision exists in the 1981 and 1984 Dealer Contracts. (Id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 11).)

The Dealer Contracts also dictate the manner in which the dealers could purchase parts/equipment and chemical products from ACS for re-sale and provided that they pay royalties to ACS. The 1971 Dealer Contract provides:

3.(a) Company agrees to sell F.O.B. Memphis, Tennessee, and Dealer agrees to buy from the Company, all necessary and integral parts of apparatus, devices and basic equipment, including automatic dishwashing machines, as available, necessary to efficiently operate the Auto-Chlor System for sanitizing and cleansing eating utensils....

(b)(1) Dealer may purchase from the Company all products as offered by Company to be sold to its customers; provided, however, the Dealer will not directly or indirectly advertise, offer for sale, or sell any such products to any buyer at other than the price stipulated therefore by the Company, which price shall be established from time to time by written notice from the Company to the Dealer, taking into consideration geographic location and local conditions before establishing prices.

The Dealer agrees to pay the Company 5% of the Dealer’s sales price on all such sales of Company’s products to its customers and on the total income or rentals received from the Automatic dish-washing machines, and other basic equipment.

(b)(2) The Company agrees to furnish to Dealer its confidential formulas and specifications for mixing chemical products offered for sale by the Company. Any and all confidential information which shall be disclosed by the Company to the Dealer in connection with said chemical products shall be used only under this Agreement and Dealer will take all steps reasonably necessary to safeguard the secrecy of said formulas.

(c) Dealer may prepare from material purchased from any source it may select, chemical products, provided they comply with the Company’s specifications; or the Dealer may purchase such chemical products from any source it may select, provided such products comply with the Company’s specifications. The Dealer agrees to sell all such chemical products under the Company’s Trade Names and to pay to the Company 5% of the Dealer’s sales price on all such sales of chemical products to Dealer’s customers.

(Cosgrove Decl. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 3).)

Compared to the 1971 Dealer Contract, the 1981 and 1984 Dealer Contracts contain slightly different language:

3.(a) Company agrees to sell F.O.B. Memphis, Tennessee, and Dealer agrees to buy from the Company, virtually at cost, all necessary and integral parts of apparatus, devices and basic equipment, including dishwashing machines, as available, necessary to efficiently operate the Auto-Chlor System for washing and sanitizing eating utensils....

(b)(1) Dealer agrees to pay to the Company 5% of Dealer’s gross income derived from the servicing or rental of the basic equipment and from the sale of all chemical products, which chemical products are manufactured by the Company and/or mixed and sold by Dealer in accordance with formulas supplied by Company....

(b)(2) The Company agrees to furnish to Dealer its confidential formulas and specifications for mixing chemical products to be offered for sale to Dealer’s customers. Any and all confidential information which shall be disclosed by the Company to the Dealer in connection with said chemical products shall be used only under this Contract and Dealer will take all steps reasonably necessary to safeguard the secrecy of said formulas.

(c) Dealer may prepare these chemical products from materials purchased from any source it may select, or the Dealer may purchase such chemical products from any source it may select, provided that in all cases such products shall comply with the Company’s formulas and specifications, which shall be approved in writing by Company, and further provided that Dealer shall sell all such chemical products under the Company’s trade names and upon such conditions as may be prescribed by the Company. Dealer shall pay to the Company 5% of the Dealer’s sales price on all such sales of chemical products to Dealer’s customers....

(Id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 3) (emphasis added).)

Each Dealer Contract forbids any additions or changes from being made and no oral agreements may be enforced:

It is mutually agreed by the parties that no addition, change or erasure of any printed portion of this Contract, except the filling in of specified blank spaces and lines, shall be valid or binding upon either party hereto and that no verbal agreements of any nature, relating to the subject matter of this Contract or to any relationship between the parties, will be considered valid or enforceable.

(Cosgrove Decl. Exs. 1-7 (Dealer Contracts ¶ 9).) The 1981 and 1984 Dealer Contracts further provide that:

[t]his Contract contains all of the agreement of the parties hereto with respect to the subject matter contained herein, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. The terms of this Contract may not be altered or modified except upon the prior written consent of the parties hereto.

(Id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 17).) The Dealer Contracts also address the effect of either parties’ failure to require performance of any provisions:

Failure of either party at any time to require performance of any provisions of this Contract shall not affect the right to require full performance thereof at any time thereafter and the waiver by either party of a breach of any such provision shall not be taken or held to be a waiver of any subsequent breach thereof or as nullifying the effectiveness of such provisions.

(Id. Exs. 1-7 (Dealer Contracts ¶ 8).)

Finally, the Dealers are prohibited from transferring or assigning the Dealer Contracts, except upon agreement of both parties. (Cosgrove Decl. Exs. 1-7) (Dealer Contracts ¶ 4). Dealers are also prohibited from engaging “directly or indirectly ... in the business of sanitizing or cleansing eating utensils by use of an automatic dispenser or equipment similar to the Auto-Chlor System, or by use of automatic dishwashing machines, or selling, installing or servicing such equipment or materials therefor, or to engage in a similar or competitive line of business” in the specified territory for one year after termination. (Id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 5(d)); see id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contacts ¶ 5(f)).)

III. George Griesbeck Takes Over Auto-Chlor System

After Robinson’s death in 1983, control of ACS passed to Red Armistead and then, in 1991, to George Griesbeck. (Cosgrove Decl. Ex. 59 (Harding Dep. Tr. at 61:14— 23); Brenner Decl. Ex. 15 (Griesbeck Dep. Tr. at 10:5-11:8).) Griesbeck placed greater emphasis on promotions and attempted to secure “chain accounts,” which are accounts that would cross over multiple territories. (Brenner Decl. Ex. 13 (Fakes Dep. Tr. at 103:3-6, 104:19-105:8).) During this time, ACS also developed various new products and made some of them available to the dealers and branches in a finished form, rather than allowing them to mix and package the products locally. (Northcutt Decl. in Opp’n to Pl.’s Mot. for Summ. J. ¶ 4.) Some of these products were high-temperature warewashing products that came in an encapsulated powder, such as “Kleen Duty,” “Kleen Duty Plus,” “Auto-Kleen,” and “Auto-Kleen Plus.” (Id.) Others complemented the low-temperature warewashing products, such as “Soak and Shine,” a solid cutlery presoak, “Pink Bead,” a powder beaded dish detergent, “NuPan,” a decarbonizer for pots and pans, and “746 Solid,” an all-purpose cleaner. (Id.)

As for the pricing of ACS parts/equipment and chemicals, Griesbeck testified that prior to 1995 (when Unilever purchased ACS (see infra Background Part IV)) the dealers and branches paid the same prices. (See Cosgrove Decl. Ex. 58 (Griesbeck Dep. Tr. at 54:7-24).) During Griesbeck’s tenure, the prices of dishwashers, parts, and chemical concentrates for dealers “were increased somewhat more aggressively and in some cases perhaps arbitrarily to improve the bottom line.” (Id. Ex. 55 (Fakes Dep. Tr. at 36).) Plaintiffs noticed the price increases almost immediately after Griesbeck took over. Robert Merrifield of ACS-Albuquerque and ACS-Fresno testified:

Q.... [W]hen is it that you think the prices went up so as to create a problem for you?

A. I can’t give you an exact date, but I would say somewhere in the early ’90s when the prices of the parts went up, the prices and the amount of concentrates, the number of concentrates, started to escalate and the prices started to increase. And I believe, as well as many other people believe — and we’ve discussed it, other dealers — that that was the point when George Griesbeck decided that he wanted to enhance the profit of the company that he was hired to sell, and to make that happen, he made — he forgot about virtually at cost and decided to make profit centers out of the parts, the machines, and the concentrates, whereas Mr. Robinson had been satisfied....

Q. And you believe that started in the early ’90s, or did it start as soon as George Griesbeck was hired?

A. As I said before, I firmly believe that he was hired for the purpose of selling it, but it took him a couple years to — you know, to set his plan in direction. And I’m in the process right now of reviewing parts price increases from 1990 to 2003, and my — again, I’m just in the process of doing this, but I see a remarkable increase in prices in ’91, ’92. So it — it puts a little credence to my theory.

(Brenner Decl. Ex. 18 (Merrifield 7/28/03 Dep. Tr. at 166:9-25, 167:16-168:2); see also Cosgrove Decl. Ex. 59 (Harding Dep. Tr. at 40:12-41:5).) Robert Durham of ACS-Jaeksonville and Diane White of ACS-Denver complained about the price increases. (Brenner Decl. Exs. 11 (R. Durham 12/1/03 Dep. Tr. at 357:14-358:19); 23 (White/Stewart 8/28/03 Dep. Tr. at 367:4-369:5).)

IV. Unilever Acquires Auto-Chlor System

After a period of stability, ACS went through a series of acquisitions beginning in 1995. In 1995, ACS was purchased by Indopco, Inc., a wholly-owned subsidiary of Unilever United States, Inc. (“Unilever”). (Strickland Decl. ¶ 2, Ex. A.) Prior to the acquisition, Griesbeck convened a dealer meeting where he informed the dealers that “they would benefit from global recognition, advertising, and being able to get the benefits of [Unilever’s] marketing department.” (Cosgrove Decl. Ex. 59 (Harding Dep. Tr. at 44:17-19).) In a “Merger Information Packet,” the dealers were told that they could expect “to gain significant new business ... as a result of new products and services” and “[g]reatly improved sales and marketing ... support” in key areas such as research and development and national accounts. (Id. Ex. 14 at 2, 4.) As a result of the acquisition, the dealers had the opportunity to sell certain Unilever products. (See Brenner Decl. Exs. 8 (Alsup Dep. Tr. at 54:8-25); 11 (R. Durham 7/31/03 Dep. Tr. at 19:8-21:1, 24:3-10, 30:15-32:18, 50:5-25); 16 (Innes Dep. Tr. at 17:1-22); 19 (McPhail 8/8/03 Dep. Tr. at 323:14-17).) In addition, during 1995 through 2002, several new products were introduced, including floor' care products, stain removers, and bathroom cleaners. (Innes. Decl. in Opp’n to Pl.’s Mot. for Summ. J. ¶ 3.)

V. Unilever Acquires Diversey and Am-ericlean

In 1996, Unilever purchased all of Diver-sey, Inc., except for its institutional business in the United States (later known as Americlean Systems, Inc.) (“Americlean”), and formed DiverseyLever, Inc. In an August 1996 letter announcing that ACS was to be part of DiverseyLever, Griesbeck told dealers that the new DiverseyLever name “does not impact Auto-Chlor System,” that ACS would “continue to operate as always,” and that ACS dealers would benefit from DiverseyLever’s global organization. (Cosgrove Decl. Ex. 15.)

In 1998, Conopeo purchased Americle-an. (Northcutt Decl. ¶ 19, Ex. D.) Ameri-clean sold products similar to ACS’s products in Plaintiffs’ territories. (Cosgrove Decl. Exs. 50 (Chapman Dep. Tr. at 34); 54 (Eastman Dep. Tr. at 166); 66 (Poole Dep. Tr. at 75:12-24).) At a fall 1998 dealer meeting, dealers expressed their concerns to Griesbeck, among others, about what the Americlean acquisition would mean to them. {Id. Ex. 18.) In December 1998, following the fall meeting, Griesbeck wrote a letter to the dealers in which he said that “[w]e believe the acquisition of further selected major chain accounts will be of benefit.” {Id. Ex. 21, ¶ 5.)

In that letter, Griesbeck also proposed a “cooperative approach” between Americle-an and ACS. {Id. Ex. 21, ¶¶ 1, 4.) Under this approach, if Americlean targeted an ACS account, ACS’s parts/equipment and chemical products would not be exchanged for Amerielean’s. {Id.) Similarly, if ACS targeted an Americlean account, Ameriele-an’s parts/equipment and chemical products would not be exchanged for ACS’s. {Id. Ex. 21, ¶ 1.) If a dealer did not want to participate fully in this “cooperative mode,” it could “cooperate in those areas where it makes sense and compete only as a last resort in the rest” or “continue to operate in the same mode as prior to the acquisition of Americlean by Unilever.” {Id. Ex. 21, ¶ 4.) Some of the dealers followed this plan, and some did not. (Brenner Supp. Decl. ¶ 18, Ex. 3 (Poole 8/4/03 Dep. Tr. at 180-81); id. ¶ 18, Ex. 5 (R. Durham 8/1/03 Dep. Tr. at 199:12-19); id. ¶ 18, Ex. 8 (McPhail 8/3/03 Dep. Tr. at 309:6-310:3); Cosgrove Decl. Ex. 72 (White/Stewart 8/27/03 Dep. Tr. at 272:17-20, 277:12-16).)

VI. Auto-Chlor System Assigned To, and Americlean Merged With, DiverseyLever

In 1999, Conopeo assigned ACS to DiverseyLever. (Strickland Decl. ¶ 5, Ex. C.) At the same time, Americlean merged with DiverseyLever. {Id.) From March 1999 to May 2002, ACS and Americlean operated as separate divisions of Diversey-Lever. (Northcutt Decl. ¶ 17.) After the 1999 assignment to DiverseyLever, the dealers were given the opportunity to sell DiverseyLever products. (Northcutt Decl. ¶ 18; Brenner Decl. Exs. 16 (Innes Dep. Tr. at 17:15-22); 21 (Poole 8/5/03 Dep. Tr. at 239:8-11).)

Under DiverseyLever’s ownership, dealers paid different prices for chemical concentrates than the branches paid. (Cos-grove Decl. Ex. 50) (Chapman Dep. Tr. at 37:1-6); 70 (Tucker Dep. Tr. at 98:23-99:6).) Additionally, to generate more revenue for ACS, ACS chemists increased the prices of reformulated concentrates by a factor of six over cost. {Id. Ex. 50 (Chapman Dep. Tr. at 38, 41-45, 47-48).) Furthermore, branches were charged the “total cost on our cost records,” which included the materials plus a flat labor charge. {Id. Ex. 70 (Tucker Dep. Tr. at 30, 98-103).) For the dealers, however, ACS would double the labor rate {id. Ex. 70) (Tucker Dep. Tr. at 104-105), and then “use[] a factor anywhere from two to three times to come up with a final cost,” {id. Ex. 70) (Tucker Dep. Tr. at 106). For dishwashing machines, branches paid “thirteen hundred ... whatever [ACS’s] cost was,” but the dealers paid “in the seventeen, eighteen hundred dollar range.” {Id. Ex. 70 (Tucker Dep. Tr. at 118-19).) This information was not shared with the dealers. {Id. Ex. 70) (Tucker Dep. Tr. at 99:7-14.)

VIL S.C. Johnson Acquires Diversey-Lever

In early 2002, Unilever was prepared to sell DiverseyLever to S.C. Johnson Commercial Markets, Inc. (“S.CJohnson”). On March 8, 2002, Plaintiffs filed their first Complaint against Unilever and Diversey-Lever. On April 19, 2002, S.C. Johnson formed Auto-C, LLC, a wholly-owned subsidiary. (Cosgrove Decl. Ex. 67 (Quast Dep. Tr. at 28).) On May 3, 2002, S.C. Johnson, doing business as Johnson Wax Professional, acquired DiverseyLever and changed its name to JohnsonDiversey, Inc. (Northcutt Decl. ¶ 17.) In this transaction, DiverseyLever transferred ACS to Auto-C. (Id. ¶¶ 5, 6; RFAC ¶72.) Diversey-Lever then became known as DLever.

Dealers again expressed concerns over how this acquisition would impact them. In September 2002, JohnsonDiversey addressed these concerns and proposed a “culture of cooperation”:

JohnsonDiversey has asked its sales force not to knowingly solicit business being served by an Auto-Chlor dealer. If a JohnsonDiversey sales representative learns that an Auto-Chlor dealer’s customer is dissatisfied with the servicing dealer, the sales representative will give the affected Auto-Chlor dealer a chance to satisfy the customer and keep the business. Only if those efforts fail will the JohnsonDiversey sales representative pursue the customer. Auto-Chlor asks that its independent dealers extend the same courtesies to JohnsonDiversey and focus their sales efforts on customers being served by unaffiliated companies like Ecolab.

(Cosgrove Decl. Ex. 29.) Again, some dealers followed this plan, and some did not. (Brenner Supp. Decl. ¶ 18, Ex. 8 (Poole 8/4/03 Dep. Tr. at 180-81); id. ¶ 18, Ex. 5 (R. Durham 8/1/03 Dep. Tr. at 199:12-19); id. ¶ 18, Ex. 8 (McPhail 8/3/03 Dep. Tr. at 309:6-310:3); Cosgrove Decl. Ex. 72 (White/Stewart 8/27/03 Dep. Tr. at 272:17-20, 277:12-16).)

Under Auto-C, new products continued to be introduced. For example, in 2003 it introduced a highly concentrated low temperature warewashing line of products called “Mach 1 DryMate,” and “Mach 2 WashMate.” (Innes Decl. in Opp’n to Pl.’s Mot. for Sum. J. ¶ 4.) Auto-C permitted the dealers to mix and package “Mach 1 DryMate” themselves, but they were required to purchase “Mach 2 WashMate” as a finished product. (Id.)

VIII. Plaintiffs’ Claims

In their Revised Fourth Amended Complaint (“RFAC”), Plaintiffs allege thirteen claims: breach of contract (Claim I); breach of the implied covenant of good faith and fair dealing (Claim II); tortious interference with prospective business relations (Claim III); tortious interference with contractual relations (Claim IV); violation of the Minnesota Franchise Act, Minn.Stat. § 80C.01 et seq. (Claim V); violation of the Colorado Consumer Protection Act (Claim VI); violation of the New Mexico Unfair Practices Act (Claim VII); statutory inducement of breach of contract in violation of Tenn. Stat. § 47-50-109 (Claim VIII); promissory estoppel (Claim IX); common law unfair competition (Claim X); false designation of origin, false description and palming off in violation of the Lanham Act, 15 U.S.C. § 1125 (Claim XI); declaratory relief (Claim XII); and injunctive relief (Claim XIII). Before the Court is Defendants’ summary judgment motion with respect to each of the claims.

Standard of Review

Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Mems v. City of St. Paul, Dep’t of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir.2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep’t of Fin. & Admin., 229 F.3d 721, 723 (8th Cir.2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Krenik v. County of Le Sueur, 41 F.3d 953, 957 (8th Cir.1995).

Analysis

Before the Court are four motions. In two Motions, Defendants have moved for summary judgment on all of Plaintiffs’ claims. (See Doc. Nos. 279, 324 and accompanying memoranda.) In the third Motion, Defendant DLever seeks “partial summary judgment on those portions of Plaintiffs’ breach of contract claim and any other claim that allege either that the Contracts gave Plaintiffs exclusive rights to DiverseyLever trademarks, trade names or products (‘Trademarks’) in their territories, or somehow gave the Plaintiffs negative control over DiverseyLever or John-sonDiversey Trademarks.” (See Doc. No. 240 and accompanying memoranda.) In the fourth Motion, plaintiffs have moved for partial summary judgment seeking declarations that “a franchise relationship has existed between Plaintiffs and Defendants at all relevant times;” and that “Plaintiffs were and are entitled by their contracts to receive the formulas and specifications for Defendants’ chemical products that Plaintiffs sell, and to purchase or prepare those products themselves so long as they conform to Defendants’ formulas and specifications.” (See Doc. No. 237 and accompanying memoranda.)

The Court will begin with Plaintiffs’ contract claims.

I. Breach of Contract and Implied Covenant of Good Faith and Fair Dealing

Plaintiffs allege several breach of contract claims against Auto-C and DLever. Tennessee law governs the Dealer Contracts. (Cosgrove Decl. Exs. 1-7 (Dealer Contracts ¶ 13).) The Tennessee Supreme Court has expressed the law concerning contract interpretation:

In resolving disputes concerning contract interpretation, our task is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contractual language.... This determination of the intention of the parties is generally treated as a question of law because the words of the contract are definite and undisputed, and in deciding the effect of the words, there is no genuine issue left for the jury to decide....

A court’s initial task in constructing a contract is to determine whether the language of the contract is ambiguous. Once found to be ambiguous, a court applies established rules of construction to determine the parties’ intent. Only if ambiguity remains after the court applies the pertinent rules of construction does [the legal meaning of the contract] become a question of fact appropriate for a jury....

The central tenet of contract construction is that the intent of the contracting parties at the time of executing the agreement should govern.... The intent of the parties is presumed to be that specifically expressed in the body of the contract.... If clear and unambiguous, the literal meaning of the language controls the outcome of contract disputes.

A contract is ambiguous only when it is of uncertain meaning and may fairly be understood in more ways than one.... Where the terms of the contract are ambiguous, the intention of the parties cannot be determined by a literal interpretation of the language, and the courts must resort to other rules of construction.

Planters Gin Co. v. Federal Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn.2002) (citations and internal quotations omitted).

The Uniform Commercial Code (“UCC”), adopted in Tennessee, codifies the law of contracts applicable to “transactions in goods.” Tennessee applies the “predominant factor test” to determine whether the UCC applies to a given contract or transaction: was the essence of or dominant factor in the formation of the contract the provision of goods or services? See Hudson v. Town & Country True Value Hardware, Inc., 666 S.W.2d 51, 53 (Tenn.1984) (citing with approval DeFilippo v. Ford Motor Co., 516 F.2d 1313 (3d Cir.1975)). No Tennessee case addresses whether a distribution agreement is a contract for the sale of goods, “but the rule in the majority of jurisdictions is that distributorships (both exclusive and non-exclusive) are to be treated as sale of goods contracts under the UCC.” Sally Beauty Co., Inc. v. Nexxus Prods. Co., Inc., 801 F.2d 1001, 1005 (7th Cir.1986) (citing cases).

There are several contract claims before the Court, but before delving into them one recurring issue that must be addressed is whether the Dealer Contracts may be orally modified notwithstanding the following language:

It is mutually agreed by the parties that no addition, change or erasure of any printed portion of this Contract, except the filling in of specified blank spaces and lines, shall be valid or binding upon either party hereto and that no verbal agreements of any nature, relating to the subject matter of this Contract or to any relationship between the parties, will be considered valid or enforceable.

(See Cosgrove Decl. Exs. 1-7 (Dealer Contracts ¶ 9).) Plaintiffs contend that they can be orally modified, and cite Shah v. Racetrac Petroleum Co., 338 F.3d 557, 573 (6th Cir.2003) in support. (Pls.’ Resp. to Defs.’ Mot. for Summ. J at 26.) In Shah, the Sixth Circuit analyzed the oral modification of a lease agreement and determined that, “In Tennessee, ‘[a]fter a written contract is made, it may be modified by the express words of the parties in writing, as well as by parol.’ ” Shah, 338 F.3d at 573 (citations omitted). In a footnote the court added, “This is true even if the contract expressly specifies that the parties may only modify the agreement in writing.” Id. at 573 n. 10 (citation omitted). Defendants respond that the rule is different for contracts governed by the UCC. (Defs.’ Reply Br. in Supp. of Defs.’ Mot. for Summ. J. at 13.) Citing Tenn. Stat. § 47-2-209(2) and Knoxville Rod and Bearing, Inc. v. Bettis Corp., 672 S.W.2d 203 (Tenn.Ct.App.1983), Defendants contend that so-called “no oral modification” clauses are enforced in UCC contracts. (Id.) Defendants are correct.

Shah involved a lease agreement and the court never addressed the propriety of oral modifications under the UCC. 338 F.3d at 572-73. Under the UCC, “[a] signed agreement which excludes modification ... except by a signed writing cannot be otherwise modified ... but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.” Tenn. Stat. § 47-2-209(2). The Tennessee Court of Appeals in Knoxville Rod dealt with the relationship of this UCC provision and the general rule of oral modifications under the common law:

We are not unmindful of the general rule established in this state by court decision that allows contracts to be orally modified even if the contracts specifically state that the contract can only be modified in writing.... However, the cases establishing this rule are not in the face of an express statutory prohibition as we have in ... § 47-2-209(2).... This is clearly recognized by the legal writers as an exception to the general rule for the oral modification of a written contract which specifically provides that oral modification cannot be made....

The contract involved herein is a transaction in goods between merchants and is controlled by the provisions [of] § 47-2-209(2) ... prohibiting oral modification. Accordingly, the contract cannot be and was not modified as suggested by plaintiff.

672 S.W.2d at 208 (citations omitted). Thus, under § 47-2-209(2) and Knoxville Rod, the Dealer Contracts cannot be orally modified.

A. Product Development

Plaintiffs’ first claim is that Defendants have failed their obligation to develop new products. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 47-48.) They cite the following contract provision for support:

The Company will, at its own expense, continue its research for the purpose of advancing the art and improving the commercial dishwashing industry, but the company shall be under no obligation to manufacture or distribute any article or product discovered, improved, or made, whether patented or not, or to sell such product to Dealer except that if the Company does discover, improve, or make an article or product not now in use in the field of commercial dishwash-ing as covered by this Contract, and desires to commercially market said article or product, Dealer shall have the right to represent the Company in Dealer’s Territory upon such terms as Company offers to others.

(Cosgrove Decl. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 11).) A nearly identical provision exists in the 1971 Dealer Contract. (Id. Exs. 2, 4, 5) (1971 Dealer Contract ¶ 11.)

Relying upon the plain language of the Dealer Contracts, Defendants contend that they are under no obligation to develop new products. (Defs.’ Br. in Supp. of Mot. for Summ. J. at 21.) Plaintiffs respond that Defendants “represented to [them] over time that [Defendants were] working diligently toward that goal of developing new and improved products and equipment” (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 48 (citing Cosgrove Decl. Exs. 13, 14, 21)), but they “have since entirely abandoned the effort to develop new concentrates or new products for the Auto-Chlor brand,” (id.). They insist that instead of developing new products, Defendants only reformulated existing ACS or JohnsonDiversey products. (Id. (citing Cosgrove Decl. Ex. 50) (Chapman Dep. Tr. at 30:1-34:6, 101:24-104:4, 108:19-109:19).)

Under the agreements, ACS is obligated to “continue its research” but “shall be under no obligation to manufacture or distribute any ... product discovered, improved, or made.” (Cosgrove Decl. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contract ¶ 11); see id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 11).) This provision is unambiguous. Based upon its usual, natural, and ordinary meaning, Defendants have no obligation to create or develop any new products. To succeed on its claim, Plaintiffs must offer evidence that Defendants have failed to continue their research. They have not done so. Accordingly, the Court will grant Defendants summary judgment on this claim.

B. Promotions

Plaintiffs next allege that Defendants have failed to meet their obligation to promote Plaintiffs’ businesses. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 48-49.) Plaintiffs cite no contractual provision in support of such an obligation, but rely upon the “clear course of conduct over a period of many years” where Defendants “assisted] with marketing by providing promotional literature and materials.” (Id. at 48.) Citing an October 6, 2000 letter from Kirk Northcutt, then Vice President of Dealer Development for DiverseyLever (Northcutt Decl. ¶ 2), Plaintiffs assert that “DiverseyLever committed to providing enhanced marketing and improved promotional literature,” (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 49 (citing Cosgrove Decl. Ex. 45)). This letter states that DiverseyLever “will support the Auto-Chlor marketing, product and branding requirements” and will “continue to provide ... marketing ... support for Auto-Chlor.” (Cosgrove Decl. Ex. 45.)

Plaintiffs’ claim fails because the Dealer Contracts do not obligate Defendants to promote ACS products on Plaintiffs’ behalf. On the contrary, to the extent that any promotional activity is required, the contracts obligate Plaintiffs “[t]o list in Dealer’s local Telephone Directory, and at Dealer’s expense, the name ‘AUTO-CHLOR SYSTEM.’” (Id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 2(e)); see id. Exs. 1, 3, 6, 7 (1981,1984 Dealer Contracts ¶ 2(f)).) Thus, it is clear that at the time the contracts were entered into, the parties intended Plaintiffs to carry out any promotions.

Although Plaintiffs point to Northcutt’s letter, it does not — and cannot — alter the Dealer Contracts to obligate Defendants to promote Auto-Chlor. Each Dealer Contract specifically provides that “no addition, change or erasure of any printed portion of this Contract, except the filling in of specified blank spaces and lines, shall be valid or binding.” (Cosgrove Decl. Exs. 1-7 (Dealer Contracts ¶ 9).) In addition, the 1981 and 1984 Dealer Contracts provide that “[t]he terms of this Contract may not be altered or modified except upon the prior written consent of the parties hereto.” (Id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 17).)

Even if the Dealer Contracts obligated Defendants to promote Auto-Chlor, either as originally written or as modified, the evidence upon which Plaintiffs rely does not support their allegations of a breach. For example, Plaintiffs allege that after Defendants took over ACS there “has since been a dramatic drop-off in new literature and materials” promoting AutoChlor. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 49.) For this point, Plaintiffs cite the testimony of Jerry Ivy, a non-party who owns several ACS dealerships. (See id.) (citing cosgrove Decl. Ex. 60 (Ivy Dep. Tr. at 49:18-51:1).) But Ivy does not mention any “dramatic drop-off’ in new promotions:

Q. [W]hat do you get out of the royalty you pay?

A. What do I get out of the royalty? I get a, probably the' — -we get the exclusive use of the Auto-Chlor machine, we get supply, they stock supplies, parts, so when we order them we can, you know, we can get them.... [T]hey do a lot of regulatory work.... They do, well, they do, when we’re talking about marketing, they furnish the literature, which they’ve done an excellent job on, at least Unilever did, DiverseyLever, I mean that type of thing.

Q. Okay. So their course of conduct has been to assist you with giving you promotional pieces; is that correct?

A. Oh, yes.

(Cosgrove Decl. Ex. 60) (Ivy Dep. Tr. 48:19-49:13.) Rather than a drop-off, Ivy testified that DiverseyLever provided “first class” promotional literature that “put us on a par with our competition.” (Id Ex. 60 (Ivy Dep. Tr. at 49:24, 50:7-8).) When asked if there were any changes in the quantity or quality of promotional literature put out since the JohnsonDiversey acquisition, Ivy responded, “I don’t know whether there has been literature come out.” (Id. Ex. 60 (Ivy Dep. Tr. at 50:17-18).)

Plaintiffs also allege that Defendants’ “trade shows and similar promotions have focused exclusively on DiverseyLever (and later JohnsonDiversey), to the exclusion of Auto-Chlor.” (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 49.) For this point, Plaintiffs rely on the testimony of Michael Mar-chino, an ACS-Minnesota employee, and on an October 1, 2003 complaint letter written by Kenneth Poole, former President of ACS-Kansas and Golden Light. (Id.) (citing Cosgrove Decl. Exs. 63 (Mar-drino Dep. Tr. 142:15-143:7), 46 (Letter dated 10/1/03 from Poole to Northcutt).) But again, this evidence does not support Plaintiffs’ position. Marchino does not state that Auto-Chlor products were excluded from trade shows:

Q.... In all the restaurant shows that you went to did Auto-Chlor have its own booth? In other words, it was just Auto-Chlor?

A. The first year or two — I’m not sure. The first year or two, yes. Then I guess maybe in ’99 it was maybe all the businesses were represented in the booth. Q. By “all the businesses” who do you mean?

A. You know, there was Unilever products there. There were Diversey products and Auto-Chlor products.

(Cosgrove Decl. Ex. 63 (Marchino Dep. Tr. 142:22-143:7) (emphasis added).) Similarly, Poole’s letter says nothing about the exclusion of Auto-Chlor products. Poole simply objects to paying a bill for a particular trade show booth:

We are in receipt of invoice 823299 in the amount $158.47, invoicing us for a portion of the TRA [Texas Restaurant Association] booth for Johnson/Diversey. No communication was made with us asking if we wished to participate in advertising and solicitation of business for Johnson/Diversey. Had there been any communication with this firm, we would have declined to participate in promoting Johnson/Diversey. We have not, for several years, received any leads from trade shows promoted and held by J ohnson/Diver sey.

We are returning invoice 823299 as unpaid. Please issue credit to this firm for the unauthorized charge.

(Id. Ex. 46.)

Because the Dealer Contracts do not obligate Defendants to promote Plaintiffs’ businesses, and because Plaintiffs have not generated a genuine issue of material fact of a breach even if Defendants were so obligated, the Court will grant Defendants summary judgment on this claim.

C. National and Chain Accounts

Plaintiffs next allege that Defendants have not carried out their obligation to develop national and chain accounts. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 49-50.) Again, Plaintiffs cite no contractual provisions in support of their claim, but rather contend that “Defendants promised efforts to promote national and chain accounts.” (Id. at 50.) Plaintiffs point to two documents in support. (Id. (citing Cosgrove Decl. Exs. 14, 21).) The first is the “Merger Information Packet” ACS provided to the dealers during the initial Unilever acquisition. It states that as a result of the acquisition “[sjupport will improve significantly in several key areas,” including “national accounts.” (Cosgrove Decl. Ex. 14 at 2). The second is the December 1998 letter from Griesbeck that states, among other things, that “[w]e believe the acquisition of further selected major chain accounts will be of benefit to all divisions of [DiverseyLever].” (Id. Ex. 21 at ¶ 5). Plaintiffs also point to various statements Defendants made concerning national and chain accounts. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 50) (citing Cosgrove Decl. Exs. 52) (M. Durham Dep. Tr. at 125:5-130:19, 199:21-204:7); 66 (Poole Dep. Tr. at 265:15-267:24); 72 (White/Stewart Dep. Tr. at 76:19-77:9).

The Dealer Contracts say nothing about national or chain accounts. Rather, to the extent business development is contemplated, the contracts require Plaintiffs to develop business in their territories. The 1971 Dealer Contracts obligate Plaintiffs to “work and develop ... the ... specified territory” and “faithfully and diligently serve the territory so granted and to put forth the necessary effort to secure contracts for the use and distribution of the Company’s products.” (Cosgrove Decl. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 2); see id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 2).) Defendants’ alleged statements concerning national and chain accounts do not alter or modify their contractual obligations. (Id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 9); id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶¶ 9, 17)); see Tenn. Stat. § 47-2-209(1); Knoxville Rod, 672 S.W.2d at 207-08. Accordingly, because the Dealer Contracts did not obligate Defendants to develop national or chain accounts, the Court will grant Defendants summary judgment on this claim.

D. Exclusive Territory

Plaintiffs next allege that Defendants have violated the exclusive territory provision of the Dealer Contracts. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 30-38.) The Dealer Contracts provide Plaintiffs with “the exclusive right to use the Registered Trademarks and Trade Names and the Company’s products” within a specified territory. (Cosgrove Decl. Exs. 1-7 (Dealer Contracts ¶ 1).) With one exception, Plaintiffs do not claim that Defendants sell Auto-Chlor branded products in their exclusive territories. (See Brenner Decl. Exs. 19 (McPhail 8/7/03 Dep. Tr. at 120:12-121:6); 21 (Poole 8/4/03 Dep. Tr. at 159:2-160:3); 23 (White/Stewart 8/27/03 Dep. Tr. at 68:6-71:10).) Rather, Plaintiffs contend that DiverseyLever and Johnson-Diversey have breached the exclusive territory provision by the acquisition of Plaintiffs’ competitor, Americlean. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 31-32.) Americlean, according to Plaintiffs, sells “essentially identical products” as Plaintiffs in Plaintiffs’ territories. (Id. at 36.)

Defendants contend that Plaintiffs have no contractual right to control the sale of non-Auto-Chlor products in their territory and cannot seek to imply a non-compete provision when none exists. ' (Defs.’ Brief in Supp. of Mot. for Summ. J. at 22-28; Defs.’ Reply Brief in Supp. of Defs.’ Mot. for Summ. J. at 7). Defendants are correct.

Americlean’s competition does not breach the Dealer Contracts. In the Dealer Contracts, ACS promised Plaintiffs that they would have an exclusive territory to use ACS’s trademarks and products. (Cosgrove Decl. Exs. 1-7 (Dealer Contracts ¶ 1).) ACS did not promise that no affiliate or parent would compete with Plaintiffs in the sense of using non-Auto-Chlor trademarks and products in Plaintiffs’ territory. There is a difference between a non-compete provision, which Plaintiffs’ contracts do not contain, and a product specific exclusive territory provision, which the contracts do contain. Plaintiffs recognized this difference when they negotiated their Dealer Contracts. Paragraph 1 provides Plaintiffs with an exclusive territory, while paragraph 5(d) of the 1971 Dealer Contract and paragraph 5(f) of the 1981 and 1984 Dealer Contracts prohibit Plaintiffs from engaging “directly or indirectly ... in the business of sanitizing or cleansing eating utensils by use of an automatic dispenser or equipment similar to the Auto-Chlor System, or by use of automatic dishwashing machines, or selling, installing or servicing such equipment or materials therefor, or to engage in a similar or competitive line of business” in the specified territory for one year after termination. (Id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 5(d)); see id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contacts ¶ 5(f)).) Because the parties clearly recognized the difference, the Court will not find an implied covenant not to compete. See So Good Potato Chip Co. v. Frito-Lay, Inc., 462 F.2d 239, 240-41 (8th Cir.1972) (“A [negative] covenant cannot be implied if the parties have either expressly dealt with the matter in the contract or have left the agreement intentionally silent on the point.” (citations omitted)). Furthermore, the Dealer Contracts provide that “[t]his Contract is not transferrable or assignable by Dealer, except upon agreement of both parties hereto,” (Cosgrove Decl. Exs. 1-7) (Dealer Contracts ¶ 4), but does not similarly restrict the transfer or assignment by ACS. Had the parties intended to restrict the ACS from assigning the Dealer Contracts, they could have done so.

Likewise, Americlean’s sale of similar products does not breach the contracts. Plaintiffs only have an “exclusive right to use the registered trademarks, and trade names and the Company’s basic equipment and Company’s products” within their territory. Plaintiffs do not accuse any Defendant of selling anything with an AutoChlor trademark on it, nor do they accuse anyone of selling Auto-Chlor products or equipment. Rather, Plaintiffs accuse DiverseyLever and, later, JohnsonDiversey representatives of selling non-Auto-Chlor products in Plaintiffs’ territory. But despite the mergers and acquisitions, Plaintiffs have no rights to those products. As the Tennessee Court of Appeals has observed,

[ojne of the general principles of the law of assignments is that the assignee ‘steps into the shoes of the assignor’ with regard to the matters covered by the assignment.... Thus, an assignment does not extinguish the underlying contract, but rather it transfers the assignor’s contract rights against the other contracting party to the assignee who succeeds to the assignor’s rights under the underlying contract.

SunTrust Bank v. Johnson, 46 S.W.3d 216, 226 (Tenn.Ct.App.2000) (citations omitted): In other words, “assignment of a contract will result in the assignee stepping into the shoes of the assignor with regard to the rights that the assignor held and not in an expansion of those rights to include those held by the assignee.” Medtronic Ave, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 60 (3d Cir.2001); see Citibank, N.A. v. Tele/Resources, Inc., 724 F.2d 266, 269 (2d Cir.1983) (“An assignment does not modify the terms of the underlying contract. It is a separate agreement between the assignor and the assignee which merely transfers the assignor’s contract rights, leaving them in full force and effect as to the party charged.... Insofar as an assignment touches on the obligations of the other party to the underlying contract, the as-signee simply moves into the shoes of the assignor.”). If DiverseyLever and Auto-C stand in the shoes of ACS, and their rights are neither enlarged nor diminished as to the Plaintiffs, then the reverse must also be true: Plaintiffs’ rights are neither enlarged nor diminished as to DiverseyLever and Auto-C. See, e.g., Capitan Enters., Inc. v. Jackson, 903 S.W.2d 772, 776 (Tex.App.1994). Said another way, if Diversey-Lever and Auto-C stand in the shoes of ACS, Plaintiffs must remain in their own shoes. Plaintiffs have cited no authority to the contrary. Thus, Plaintiffs cannot claim an exclusive right to Americlean products — or DiverseyLever or JohnsonDiver-sey products for that matter' — because when Plaintiffs entered the Dealer Contracts, those products were not ACS products.

The Court now turns to ACS-Jacksonville’s arguments. ACS-Jaeksonville alleges that Defendants are in breach by selling Auto-Chlor products to an entity outside its territory who potentially resells those products in its territory. (Pis.’ Resp. to Defs.’ Mot. for Summ. J. at 33.) ACS-Jacksonville’s President, Robert Durham, explains:

Q. What is it that you claim that the parent company did wrong?

A. They’re distributing Auto-Chlor products to these customers in my protected territory.

Q. Describe how you believe they’re distributing Auto-Chlor products in your territory.

A. They told me they were.

Q. What did they tell you?

A. That they were selling products to [Shoneys’] commissary that would end up eventually — had potential to end up in our territory....

Q.... What’s a commissary?

A. A commissary is a big building where they ship in bulk products that can be distributed on a smaller scale.... The store managers, when they’re ordering their meats and their fruits and vegetables from their commissary, they also can order Auto-Chlor branded products, and they do....

(Brenner Decl. Ex. 11 (R. Durham 8/1/03 Dep. Tr. 126-28).) The commissary, Commissary Operations Inc., is located in Atlanta and Tifton, Georgia. (Id. Ex. 11 (R. Durham 8/1/03 Dep. Tr. at 130, 134-35).) By virtue of the commissary, Shoneys restaurants in ACS-Jacksonville’s territory “can go through their computer system and order these products, Auto-Chlor products, cheaper than they can buy them from us from this company in Tifton, Georgia, and that they do.” (Id. Ex. 11 (R. Durham 8/1/03 Dep. Tr. at 135).)

While ACS may be selling Auto-Chlor products to the commissary located in Atlanta and Tifton, Georgia, the commissary is not within ACS-Jacksonville’s exclusive territory. Atlanta is in Fulton County and Tifton is in Tift County. ACS-Jacksonville’s exclusive territory, however, extends only to the Georgia Counties of Brantley, Glynn, Charlton, and Camden. (Cosgrove Decl. Ex. 5 (ACS-Jacksonville Dealer Contract ¶ 1).) Therefore, ACS’s sales to the commissary do not breach the Dealer Contract.

E. Providing Chemical Formulas and Specifications

Plaintiffs assert that they “were and are entitled by their contracts to receive the formulas and specifications for Defendants’ chemical products that Plaintiffs sell, and to purchase or prepare those products themselves so long as they conform to Defendants’ formulas and specifications.” (Pis.’ Mem. of Law in Supp. of Mot. for Partial Summ. J. at 1-2.) It is clear from their arguments, and from the questions their attorneys asked in depositions, that when Plaintiffs say “chemical products” what they want are the formulas for Defendants’ secret chemical concentrates.

Each of the Dealer Contracts provide ■that “[t]he Company agrees to furnish to Dealer its confidential formulas and specifications for mixing chemical products to be offered for sale.” (Cosgrove Decl. Exs. 1-7 (Dealer Contracts 3(b)(2)).) In addition, Plaintiffs “may prepare from material purchased from any source it may select, chemical products, provided they comply with the Company’s specifications; or the Dealer may purchase such chemical products from any source it may select, provided such products comply with the Company’s specifications.” (Id. Exs. 2, 4, 5 (1971 Dealer Contract ¶ 3(c)).) The 1981 and 1984 Dealer Contracts provide similar language. (Id. Exs. 1, 3, 6, 7 (1981, 1984 Dealer Contracts ¶ 3(c)).)

The Dealer Contracts do not entitle Plaintiffs to the formulas of Defendants’ chemical concentrates. Plaintiffs overlook two key words of the Dealer Contract which obligate ACS to “furnish to Dealer its confidential formulas and specifications for mixing chemical products.” (Id. Exs. 1-7 (Dealer Contracts 3(b)(2)).) Had the parties intended that Plaintiffs would receive the confidential formulas and specifications for the chemical concentrates themselves, they could have easily omitted the word “mixing.” But they did not. Moreover, the “chemical products” at issue are those “to be offered for sale.” It is undisputed, however, that chemical concentrates are not offered for sale; rather, only the end product is sold. Therefore, even if the words “for mixing” were omitted, Plaintiffs still would not be entitled to the concentrate formulas. Under the usual, natural, and ordinary meaning of the contractual language, Planters Gin, 78 S.W.3d at 889-90, Plaintiffs are not entitled to the concentrate formulas.

The parties’ course of performance since the inception of the Auto-Chlor System confirms this reading of the contract. A course of performance can explain what the parties meant by this provision. See Tenn. Stat. § 47-2-202.

Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.

Id. § 47-2-208(1). As the comments to § 47-2-202 observe, “the course of actual performance by the parties is considered the best indication of what they intended the writing to mean.” Id. § -47-2-202, official comment 2. Over the last sixty years, no dealer ever received the formula for the chemical concentrate. Rather, the dealers received a confidential mixture formula necessary to make Auto-Chlor products. One of the ingredients in the mixture formula was an ACS chemical concentrate. (Brenner Deck in Opp’n to Pis.’ Mot. for Summ. J. ¶ 2, Ex. 8 (Harding 11/20/03 Dep. Tr. at 145:24-146:13).) But the dealers — both litigating dealers and non-litigating dealers — admit that they were never given the formula for the concentrate itself. (Id. Exs. 1 (Alsup 10/29/03 Dep. Tr. at 14:23-15:25); 4 (M. Durham 7/31/03 Dep. Tr. at 33:6-36:25); 5 (Eastman 10/17/03 Dep. Tr. at 89:1-91:8); 9 (Ivy 10/23/03 Dep. Tr. 123:5-124:23); 12 (McPhail 8/8/03 Dep. Tr. at 418:12-419:3); 13 (Merrifield 7/28/03 Dep. Tr. at 145:19-146:6); 14 (Poole 8/4/03 Dep. Tr. at 65:10-23); 15 (White/Stewart 8/28/03 Dep. Tr. at 391:13-392:3); 16 (Vertin 7/23/03 Dep. Tr. at 24:5-25:9).) Defendants agree. (Id. Exs. 6 (Fakes 8/14/03 Dep. Tr. at 42:1-4, 82:11-83:14, 83:20-84:6); 8 (Harding 11/20/03 Dep. Tr. at 145:24-146:13).)

Plaintiffs stress that they must be entitled to the concentrate formulas because under paragraph 3(c) they are allowed to purchase materials for the chemical products or the chemical products themselves from other sources. Without the concentrate formulas, they assert, “[t]his becomes quite literally impossible” and would render paragraph 3(c) meaningless. (Pis.’ Reply in Supp. of Mot. for Summ. J. at 12.) The Court disagrees.

First, Plaintiffs may prepare chemical products from “materials purchased from any source.” Construing paragraphs 3(b)(2) and 3(c) together, Defendants must provide the mixing formula and Plaintiffs can buy “materials” — other than the concentrate — from another source to make the chemical product. The concentrate is only an ingredient of the formula. Second, Plaintiffs may “purchase chemical products from any source.” “Chemical products” in paragraph 3(c) is not defined, but it should mean the same as in paragraph 3(b)(2), the immediately preceding paragraph, where “chemical products” are those “offered for sale.” Construing paragraphs 3(b)(2) and 3(c) together, Defendants must provide the mixing formula and Plaintiffs may purchase chemical products which do not contain an Auto-Chlor concentrate from other sources, as long as the product otherwise complies with the mixture formula. Whether there has ever been such a situation, the Court cannot determine. Suffice it to say that the parties contemplated such a possibility when they drafted the contracts. In any event, Plaintiffs agreed to the contract as written and have performed it consistently over the entire history of Auto-Chlor withou