Common use of Augmentation of Penalty Payments Clause in Contracts

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, plaintiff Davia is relying entirely upon defendant West Pacific and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activityactivity of the Covered Products. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant West Pacific evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed in California by Sur La Table West Pacific in sales volumes materially different (>more than 25%) than those identified by such Sur La Table West Pacific prior to execution of this Agreement, then Sur La Table West Pacific shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 West Pacific shall also be liable for any pay reasonable, additional attorney fees, up to a maximum of $10,000, fees expended by plaintiff Davia in discovering applicable such additional retailers or sales for such defendantand reporting them to West Pacific in accordance with this section. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant West Pacific with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant West Pacific shall have thirty (30) days to agree pay the additional civil penalties amount demanded or negotiate with Davia as to the an agreed amount of fees and penalties and fees owing and submit such payment to plaintiff be paid in accordance with the method of payment of penalties and fees identified in Sections 4.4 and 4.5Section 4.4. Should this the Parties fail to reach an agreement within thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and feesdays, plaintiff Davia shall be entitled to file a formal 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 West Pacific in sales volumes materially different (more than 25%) than those identified by West Pacific prior to execution of this Agreement; and (2) if the Court finds in favor of Davia on issue no. 1, the amount of legal claim fees Davia is entitled to recover for discovering the additional civil penalties pursuant sales and reporting them to West Pacific in accordance with this section and section. In any action brought under this Section 4.2, the prevailing party on such claim shall be entitled to all reasonable attorney recover its attorney’s and other fees and costs relating to such claimcosts.

Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff Davia is relying entirely upon defendant GBG and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activityactivity of the Covered Products. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant GBG evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed in California by Sur La Table GBG or Homestead in sales volumes materially different (>more than 25%) than those identified by such Sur La Table GBG prior to execution of this Agreement, then Sur La Table GBG shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 GBG shall also be liable for any pay reasonable, additional attorney fees, up to a maximum of $10,000, fees expended by plaintiff Davia in discovering applicable such additional retailers or sales for such defendantand reporting them to GBG in accordance with this section. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant GBG with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant GBG shall have thirty (30) days to agree pay the additional civil penalties amount demanded, or negotiate with Davia as to the an agreed amount of fees and penalties and fees owing and submit such payment to plaintiff be paid in accordance with the method of payment of penalties and fees identified in Sections 4.4 and 4.5Section 4.4. Should this the Parties fail to reach an agreement within thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and feesdays, plaintiff Davia shall be entitled to file a formal 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 GBG and Homestead in sales volumes materially different (more than 25%) than those identified by GBG prior to execution of this Agreement; and (2) if the Court finds in favor of Davia on issue no. 1, the amount of legal claim fees Davia is entitled to recover for discovering the additional civil penalties pursuant sales and reporting them to GBG in accordance with this section and section. In any action brought under this Section 4.2, the prevailing party on such claim shall be entitled to all reasonable attorney recover its attorneys’ and other fees and costs relating to such claimcosts.

Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff Davia is relying entirely upon defendant Berkshire Blanket and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant Berkshire Blanket evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed by Sur La Table Berkshire Blanket to Bed, Bath and Beyond in sales volumes materially different (>more than 25%) different than those identified by such Sur La Table Berkshire Blanket prior to execution of this Agreement, then Sur La Table Berkshire Blanket shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 Berkshire Blanket shall also be liable liable, in accordance with the requirements of Code of Civil Procedure section 1021.5 for any reasonable, additional attorney fees, up to a maximum of $10,000, fees expended by plaintiff Davia in discovering applicable such additional retailers or sales for such defendantsales. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant 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, such defendant Berkshire Blanket shall have thirty (30) days to agree to the amount of fees and penalties and fees owing by Berkshire Blanket and submit such payment to plaintiff Davia in accordance with the method of payment of penalties and fees identified in Sections 4.4 Section 4.1 and 4.54.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, plaintiff Davia shall be entitled to file a formal legal claim for additional civil penalties pursuant to this section and the Section. The prevailing party on such any claim filed pursuant to this section shall be entitled to all its reasonable attorney fees and costs relating to such claimcosts.

Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff Davia is relying entirely upon defendant Town & Country and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant Town & Country evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed by Sur La Table Town & Country in sales volumes materially different (>25%) than those identified by such Sur La Table Town & Country prior to execution of this AgreementAgreement and Town & Country does not provide plaintiff with competent and credible evidence to dispute this claim, then Sur La Table Town & Country shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. Moscow Mule Mug (sold individually and in Sets of 4) sold prior to execution of this Agreement but Davia represents that she does not identified by Sur La Table to plaintiffpresently have such information. Settling Defendant Town & Country shall also be liable for any reasonable, additional attorney feesfees expended by Davia, up to a maximum of $10,00010,000 or as determined by the Court, expended by plaintiff in discovering applicable such additional retailers or sales for such defendantsales. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant Town & Country with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant Town & Country shall have thirty (30) days to either present evidence to counter this claim or to agree to the amount of fees and penalties and fees owing by Town & Country and submit such payment to plaintiff Davia in accordance with the method of payment of penalties and fees identified in Sections 4.4 Section 4.1 and 4.54.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, plaintiff Davia shall be entitled to file a formal legal claim for the additional civil penalties pursuant to this section Section and the prevailing party on to such claim 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 Davia is relying entirely upon defendant Xxxxxxxx Home and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activityactivity of the Covered Products. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant Xxxxxxxx Home evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed in California by Sur La Table Xxxxxxxx Home in sales volumes materially different (>more than 25%) than those identified by such Sur La Table Xxxxxxxx Home prior to execution of this Agreement, then Sur La Table Xxxxxxxx Home shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 Xxxxxxxx Home shall also be liable for any pay reasonable, additional attorney fees, up to a maximum of $10,000, fees expended by plaintiff Davia in discovering applicable such additional retailers or sales for such defendantand reporting them to Xxxxxxxx Home in accordance with this section. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant Xxxxxxxx Home with a written demand for all such additional penalties and attorney fees under this Section. Davia agrees that any attorney fee demand shall be supported by time records as required by California law. After service of such demand, such defendant Xxxxxxxx Home shall have thirty (30) days to agree either pay the additional civil penalty and fee amount demanded or negotiate with Davia as to the an agreed amount of fees and penalties and fees owing and submit such payment to plaintiff be paid in accordance with the method of payment of penalties and fees identified in Sections 4.4 and 4.5Section 4.4. Should the Parties fail to reach an agreement as to the amount of additional penalties under this section within thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and feesdays, plaintiff Davia shall be entitled to file a formal legal claim an action for additional civil penalties pursuant breach of this Agreement in which the sole issues for resolution by the Court shall be whether Covered Products were distributed in California by Xxxxxxxx Home in sales volumes materially different (more than 25%) than those identified by Xxxxxxxx Home prior to execution of this section and the Agreement. The prevailing party Party on any such claim action for breach shall be entitled to all recover their reasonable attorney fees and costs relating related to such claim.the action. Should the Parties reach an agreement on an additional civil penalty within the thirty day period, but be unable to agree on the amount of attorney fees and costs due Davia under this section, the Parties shall attempt, in good faith, to mediate this remaining dispute within the following sixty

Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff Davia is relying entirely upon defendant Settling Defendants and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activity. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant Defendants evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed by Sur La Table Settling Defendants in sales volumes materially different (>25%) than those identified by such Sur La Table Settling Defendants prior to execution of this Agreement, and Settling Defendants concede the violation, then Sur La Table Settling Defendants 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 plaintiff10,000. Settling Defendant Defendants shall also be liable for any reasonable, additional attorney feesfees expended by Davia in discovering such additional retailers or sales, up to a maximum of $10,00010,000 or some other amount awarded by the court after hearing. In the event that Settling Defendants dispute the claim of violation, expended by plaintiff in discovering applicable additional retailers or sales then the parties agree to submit the matter to a neutral arbitrator for such defendantresolution. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant Defendants with a written demand for all such additional penalties and documentation of reasonable attorney fees under this Section. After service of such demand, such defendant Settling Defendants shall have thirty (30) days to agree to the amount of fees and penalties and fees owing by Settling Defendants and submit such payment to plaintiff Davia in accordance with the method of payment of penalties and fees identified in Sections 4.4 Section 4.1 and 4.54.4. Should this thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and fees, plaintiff Davia shall be entitled to file a formal legal claim demand for arbitration with a neutral arbitrator at JAMS or ADR Services, Inc. for additional civil penalties pursuant to this section and Section. Any arbitration shall take place in Marin County or San Francisco County unless otherwise agreed by the Parties. The prevailing party on in any such claim arbitration demand 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 Davia is relying entirely upon defendant Geneva Home and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activityactivity of the Covered Products. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant Geneva Home evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed in California by Sur La Table Geneva Home in sales volumes materially different (>more than 25%) than those identified by such Sur La Table Geneva Home prior to execution of this Agreement, then Sur La Table Geneva Home shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 Geneva Home shall also be liable for any pay reasonable, additional attorney fees, up to a maximum of $10,000, fees expended by plaintiff Davia in discovering applicable such additional retailers or sales for such defendantand reporting them to Geneva Home in accordance with this section. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant Geneva Home with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant Geneva Home shall have thirty (30) days to agree pay the additional civil penalties amount demanded or negotiate with Davia as to the an agreed amount of fees and penalties and fees owing and submit such payment to plaintiff be paid in accordance with the method of payment of penalties and fees identified in Sections 4.4 and 4.5Section 4.4. Should this the Parties fail to reach an agreement within thirty (30) day period pass without any such resolution between the parties and payment of such additional penalties and feesdays, plaintiff Davia shall be entitled to file a formal 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 claim fees Davia is entitled to recover for discovering the additional civil penalties pursuant sales and reporting them to Geneva Home in accordance with this section and section. In any action brought under this Section 4.2, the prevailing party on such claim shall be entitled to all reasonable attorney recover its attorney’s and other fees and costs relating to such claimcosts.

Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff Davia is relying entirely upon defendant Meridian and its counsel for accurate, good faith reporting to plaintiff Davia of the nature and amounts of relevant sales activityactivity of the Covered Products. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents to Settling Defendant Meridian evidence that the Sur La Table 16 oz. Moscow Mule Mug (sold individually and in Sets of 4) has Covered Products have been distributed in California by Sur La Table Meridian in sales volumes materially different (>more than 25%) than those identified by such Sur La Table Meridian prior to execution of this Agreement, then Sur La Table Meridian shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 Meridian shall also be liable for any pay reasonable, additional attorney fees, up to a maximum of $10,000, fees expended by plaintiff Davia in discovering applicable such additional retailers or sales for such defendantand reporting them to Meridian in accordance with this section. Plaintiff Davia agrees to provide such misrepresenting Settling Defendant Meridian with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant Meridian shall have thirty (30) days to agree pay the additional civil penalties amount demanded or negotiate with Davia as to the an agreed amount of fees and penalties and fees owing and submit such payment to plaintiff be paid in accordance with the method of payment of penalties and fees identified in Sections 4.4 and 4.5Section 4.4. Should the parties dispute whether Davia has provided appropriate evidence of “sales volumes materially different (more than 25%) than those identified by Meridian prior to execution of this Agreement”, then the parties shall have the issued decided by a mutually agreed upon Mediator, each side to bear its own costs of the mediation. Should mediation not be successful in resolving the matter then, within thirty (30) day period pass without any such resolution between days of the parties and payment of such additional penalties and feesmediation, plaintiff Davia shall be entitled to file a formal 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 Meridian in sales volumes materially different (more than 25%) than those identified by Meridian prior to execution of this Agreement; and (2) if the Court finds in favor of Davia on issue no. 1, the amount of legal claim fees, if any, Davia is entitled to recover for discovering the additional civil penalties pursuant sales and reporting them to Meridian in accordance with this section and section. In any action brought under this Section 4.2, the prevailing party on such claim shall be entitled to all reasonable attorney recover its attorney’s and other fees and costs relating to such claimcosts.

Augmentation of Penalty Payments. For purposes of the penalty assessment under this Agreement, plaintiff Davia is relying entirely upon defendant ACE and its counsel Xxxx for accurate, good faith reporting to plaintiff Davia of the nature and amounts of sales activity of the Covered Products during the relevant sales activityperiod. If within nine (9) months of the Effective Date, plaintiff Davia discovers and presents evidence to Settling Defendant evidence counsel for Xxxx that during the Sur La Table 16 oz. Moscow Mule Mug (relevant period the Covered Products have been sold individually and in Sets of 4) has been distributed to retailers or California consumers by Sur La Table Xxxx in sales volumes materially different (>more than 25%) than those identified by such Sur La Table Xxxx prior to execution of this Agreement, and Xxxx does not provide Davia with competent and credible evidence to dispute this claim, then Sur La Table Xxxx shall be liable for an additional penalty amount of up to $10,000 for any Sur La Table 16 oz10,000.00. 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 Davia agrees to provide such misrepresenting Settling Defendant counsel for Xxxx with a written demand for all such additional penalties and attorney fees under this Section. After service of such demand, such defendant Xxxx shall have thirty (30) days to either present evidence to counter this claim or to agree to the amount of fees and penalties and fees owing by Xxxx and submit such payment to plaintiff Davia in accordance with the method of payment of penalties and fees identified in Sections 4.4 Section 4.1 and 4.54.4. Should the parties dispute whether Davia has provided appropriate evidence of “sales volumes materially different (more than 25%) than those identified by Xxxx prior to execution of this Agreement”, then the parties shall have the issue decided by a mutually agreed upon Mediator, each side to bear its own costs of the mediation. Should mediation not be successful in resolving the matter then, within thirty (30) day period pass without any such resolution between days of the parties and payment of such additional penalties and feesmediation, plaintiff Davia shall be entitled to file a formal an action for breach of this Agreement in which the sole issues for resolution by the Court shall be: (1) whether during the relevant period Covered Products were sold to retailers or California consumers by Xxxx and ACE in sales volumes materially different (more than 25%) than those identified by Xxxx and ACE prior to execution of this Agreement; and (2) if the Court finds in favor of Davia on issue no. 1, the amount of legal claim fees, if any, Davia is entitled to recover for discovering the additional civil penalties pursuant sales and reporting them to Xxxx in accordance with this section and section. In any action brought in court following mediation under this Section 4.2, the prevailing party on such claim shall be entitled to all reasonable attorney recover its attorney’s and other fees and costs relating to such claimincurred following mediation.