Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, Davia is relying entirely upon Nordstrom for accurate, good faith reporting to Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, Xxxxx discovers and presents evidence to counsel for Nordstrom that the Covered Products have been distributed in California in sales volumes materially different (greater than 25%) than those identified by Nordstrom prior to execution of this Agreement, and Nordstrom does not provide Davia with competent and credible evidence to dispute this claim, then Nordstrom shall be liable for an additional penalty amount of $10,000.00. Xxxxx agrees to provide counsel for Xxxxxxxxx with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, Xxxxxxxxx shall have thirty (30) days to either present evidence to counter this claim or to agree to the amount of fees and penalties owing by Xxxxxxxxx and submit such payment to Davia in accordance with the method of payment of penalties and fees identified in Section 4.1 and 4.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, Davia shall be entitled to file a formal legal claim for the additional civil penalties pursuant to this Section and the prevailing party to such action shall be entitled to all reasonable attorney fees and costs relating to such claim.
Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, Davia is relying entirely upon Future Textiles and its counsel for accurate, good faith reporting to Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, Davia discovers and presents to Future Textiles evidence that the Covered Products have been distributed by Future Textiles in sales volumes materially different than those identified by Future Textiles prior to execution of this Agreement, then Future Textiles shall be liable for an additional penalty amount of $10,000.00. Future Textiles shall also be liable, in accordance with the requirements of Code of Civil Procedure section 1021.5 for any reasonable, additional attorney fees expended by Davia in discovering such additional retailers or sales. Davia agrees to provide Future Textiles with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, Future Textiles shall have thirty (30) days to agree to the amount of fees and penalties owing by Future Textiles and submit such payment to Davia in accordance with the method of payment of penalties and fees identified in Section 4.1 and 4.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, Davia shall be entitled to file a formal legal claim for additional civil penalties pursuant to this Section and shall be entitled to all reasonable attorney fees and costs, in accordance with the requirements of Code of Civil Procedure section 1021.5, relating to such claim.
Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, Davia is relying entirely upon Geneva Home and its counsel for accurate, good faith reporting to Davia of the nature and amounts of sales activity of the Covered Products. If within nine (9) months of the Effective Date, Davia discovers and presents to Geneva Home evidence that the Covered Products have been distributed in California by Geneva Home in sales volumes materially different (more than 25%) than those identified by Geneva Home prior to execution of this Agreement, then Geneva Home shall be liable for an additional penalty amount of $10,000.00. Geneva Home shall also pay reasonable, additional attorney fees expended by Davia in discovering such additional sales and reporting them to Geneva Home in accordance with this section. Davia agrees to provide Geneva Home with a written demand for such additional penalties and attorney fees under this Section. After service of such demand, Geneva Home shall have thirty (30) days to pay the additional civil penalties amount demanded or negotiate with Davia as to an agreed amount of fees and penalties to be paid in accordance with the method of payment of penalties and fees identified in Section 4.4. Should the Parties fail to reach an agreement within thirty (30) days, Davia shall be entitled to file an action for breach of this Agreement in which the sole issues for resolution by the Court shall be: (1) whether Covered Products were distributed in California by Geneva Home in sales volumes materially different (more than 25%) than those identified by Geneva Home prior to execution of this Agreement; and (2) if the Court finds in favor of Davia on issue no. 1, the amount of legal fees Davia is entitled to recover for discovering the additional sales and reporting them to Geneva Home in accordance with this section. In any action brought under this Section 4.2, the prevailing party shall be entitled to recover its attorney’s and other fees and costs.
Augmentation of Penalty Payments. 10 For purposes of the penalty assessment under this Agreement, Davia is relying upon 11 Xxxxxxxxx and their counsel for accurate, good faith reporting to Davia of the nature and amounts of 12 sales activity of the Covered Products during the relevant period. If within nine (9) months of the 13 Effective Date, Xxxxx discovers and presents to Xxxxxxxxx evidence that Xxxxxxxxx materially 14 misrepresented its quantity of sales of Covered Products to California Customers during the 15 relevant period, and Xxxxxxxxx does not provide Davia with evidence to dispute this claim, then 16 Xxxxxxxxx shall be liable for an additional penalty amount of $10,000.00. Xxxxxxxxx shall also pay 17 reasonable, additional attorney fees expended by Xxxxx in discovering such additional sales and 18 reporting them to Xxxxxxxxx in accordance with this section. Xxxxx agrees to provide Xxxxxxxxx with
19 a written demand for such additional penalties and attorney fees under this Section. After service 20 of such demand, Xxxxxxxxx shall have 45 days to either present evidence to counter this claim or 21 agree to the amount demanded or negotiated with Xxxxx, to be paid in accordance with the method 22 of payment of penalties and fees identified in Section 4.4. Should the parties dispute whether Xxxxx 23 has provided appropriate evidence to support her claim, then the parties shall have the issue 24 decided by a mutually agreed upon Mediator, each side to bear its own costs of the mediation.
Augmentation of Penalty Payments. 21 For purposes of the penalty assessment under this Agreement, Xxxxx is relying entirely 22 upon XXXXXX and its counsel for accurate, good faith reporting to Davia of the nature and 23 amounts of relevant sales activity. If within nine (9) months of the Effective Date, Davia 24 discovers and presents to XXXXXX evidence that the Covered Products have been distributed 25 by XXXXXX in sales volumes to California materially different than those identified by 26 XXXXXX prior to execution of this Agreement, then the Parties shall have a period of 30 days to 27 meet and confer concerning such evidence, and Xxxxxx shall have the opportunity to present to 1 Plaintiff any evidence to the contrary. If the Parties can agree on an appropriate disposition, 2 then Xxxxxx shall submit payment of any agreed additional civil penalties and attorney’s fees 3 related to investigating and alleging sales activity materially different from that disclosed by 4 Xxxxxx prior to the execution of this Agreement within 30 days in accordance with the method
Augmentation of Penalty Payments. 11 For purposes of the penalty assessment under this Agreement, Plaintiff is relying entirely 12 upon Defendant for accurate, good faith reporting to Plaintiff of the nature and amounts of relevant 13 sales activity and retailer BevMo’s compliance with the warning obligations of this Agreement. If 14 within nine (9) months of the Effective Date, Plaintiff discovers and presents to Defendant either (1) 15 evidence that any type of Covered Product has been distributed by Defendant in sales volumes 16 materially different (more than 15%) than those identified by Defendant prior to execution of this 17 Agreement or (2) that after completion of the actions set forth in Section 3.2, BevMo is selling the 18 Covered Product in California without a warning pursuant to this Agreement, then Formation shall 19 be liable for an additional penalty amount of up to $65.00 for each unit of Covered Product sold in 20 California prior to execution of this Agreement but not identified by Formation to Plaintiff or for each 21 unit of Covered Product sold by BevMo in California without a warning after more than five (5) units 22 are found without the requisite warning. Defendant shall also be liable for any reasonable, additional 23 attorney fees expended by Plaintiff in discovering applicable California sales without warning. 24 Plaintiff agrees to provide Defendant with a written demand for all such additional penalties and 25 attorney fees under this Section. After service of such demand, the Parties shall meet and confer in 26 good faith to assess the information. If within twenty (20) days Defendant agrees Plaintiff has 27 documented a violation of this Section, the Parties shall have and additional ten (10) days to agree to 28 the amount of fees and penalties owing. Thereafter, Defendant shall have five (5) days to submit such 1 payment to Plaintiff in accordance with the method of payment of penalties and fees identified in
Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, Davia is relying entirely upon Excelta for accurate, good faith reporting to Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, Davia discovers and presents evidence to counsel for Excelta that the Covered Products have been distributed in California in sales volumes materially different (more than 25%) than those identified by Excelta prior to execution of this Agreement, and Excelta does not provide Davia with competent and credible evidence to dispute this claim, then Excelta shall be liable for an additional penalty amount of $10,000.00. Davia agrees to provide counsel for Excelta with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, Excelta shall have thirty (30) days to either present evidence to counter this claim or to agree to the amount of fees and penalties owing by Excelta and submit such payment to Davia in accordance with the method of payment of penalties and fees identified in Section 4.1 and 4.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, Davia shall be entitled to file a formal legal claim for the additional civil penalties pursuant to this Section and the prevailing party to such action shall be entitled to all reasonable attorney fees and costs relating to such claim.
Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff is relying entirely upon defendant and its counsel for accurate, good faith reporting to plaintiff of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, plaintiff discovers and presents to Settling Defendant evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has been distributed by Sur La Table in sales volumes materially different (>25%) than those identified by such Sur La Table prior to execution of this Agreement, then Sur La Table shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) sold prior to execution of this Agreement but not identified by Sur La Table to plaintiff. Settling Defendant shall also be liable for any reasonable, additional attorney fees, up to a maximum of $10,000, expended by plaintiff in discovering applicable additional retailers or sales for such defendant. Plaintiff agrees to provide such misrepresenting Settling Defendant with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant shall have thirty (30) days to agree to the amount of penalties and fees owing and submit such payment to plaintiff in accordance with the method of payment of penalties and fees identified in Sections 4.4 and 4.5. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, plaintiff shall be entitled to file a formal legal claim for additional civil penalties pursuant to this section and the prevailing party on such claim shall be entitled to all reasonable attorney fees and costs relating to such claim.
Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, Davia is relying entirely upon GRIP for accurate, good faith reporting to Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, Davia discovers and presents evidence to counsel for GRIP that the Covered Products have been distributed in California in sales volumes materially different than those identified by GRIP prior to execution of this Agreement, and GRIP does not provide Davia with competent and credible evidence to dispute this claim, then GRIP shall be liable for an additional penalty amount of $10,000.00. Davia represents that she does not presently have such information. GRIP shall also be liable for any reasonable, additional attorney fees expended by Davia, up to $10,000 or as determined by the Court, in discovering such additional retailers or sales. Davia agrees to provide counsel for GRIP with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, GRIP shall have thirty (30) days to either present evidence to counter this claim or to agree to the amount of fees and penalties owing by GRIP and submit such payment to Davia in accordance with the method of payment of penalties and fees identified in Section 4.1 and 4.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, Davia shall be entitled to file a formal legal claim for the additional civil penalties pursuant to this Section and the prevailing party to such action shall be entitled to all reasonable attorney fees and costs relating to such claim.
Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, Davia is relying entirely upon Berkshire Blanket and its counsel for accurate, good faith reporting to Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, Davia discovers and presents to Berkshire Blanket evidence that the Covered Products have been distributed by Berkshire Blanket to Bed, Bath and Beyond in sales volumes materially (more than 25%) different than those identified by Berkshire Blanket prior to execution of this Agreement, then Berkshire Blanket shall be liable for an additional penalty amount of $10,000.00. Berkshire Blanket shall also be liable, in accordance with the requirements of Code of Civil Procedure section 1021.5 for any reasonable, additional attorney fees expended by Davia in discovering such additional retailers or sales. Davia agrees to provide Berkshire Blanket with a written demand for all such additional penalties and attorney fees under this Section, including Davia’s evidence supporting any claim for a materially different sales volume. After service of such demand, Berkshire Blanket shall have thirty (30) days to agree to the amount of fees and penalties owing by Berkshire Blanket and submit such payment to Davia in accordance with the method of payment of penalties and fees identified in Section 4.1 and 4.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, Davia shall be entitled to file a formal legal claim for additional civil penalties pursuant to this Section. The prevailing party on any claim filed pursuant to this section shall be entitled to its reasonable fees and costs.
