FABRICATOR AGREEMENT
THIS
AGREEMENT made this 11day of 11, 2003 by and among US Polymers, Inc., a
California corporation (the “Company”), and The Vinyl Fence Company., a ______
(the “Fabricator”), with reference to the following facts:
WHEREAS,
Company
manufactures and distributes materials, parts and supplies (the “Materials”)
used to fabricate, install, market and sell vinyl fencing and patio covers
(the
“Products”) and has the exclusive right to the know-how, processes, concepts,
designs, patterns, systems diagrams, devices drawing, plans, developments,
experiments, formulations, trademarks, tradenames and other information relating
to and used to fabricate, market and sell the Products under the brand name
“DuraMAX” (the “System”) throughout the United States;
WHEREAS,
Fabricator is engaged in the fabrication and selling of vinyl fencing and
related products and wishes to buy Materials from Company for the purpose
of
assembling custom vinyl fencing from the Materials in accordance with the
System
and selling the Products under one or more trademarks owned by the Company
(the
“Trademarks”); and
WHEREAS,
Fabricator desires to obtain from Company, and Company has agreed to grant
to
Fabricator, certain rights with respect the Materials, Products and the System,
all in accordance with the terms and conditions of this Agreement.
NOW,
THEREFORE THIS AGREEMENT WITNESSES
that, in
consideration of the payments, covenants and agreements herein contained,
and
provided for, the parties agree as follows:
SECTION
1
DEFINITIONS
1.01
As
used in this Agreement the term:
(a) “System”
shall mean, in addition to the recitals above, all present and future processes,
trade secrets, trademarks, engineering, design, process and operating
information, inventions, developments, patent applications, technical data
and
other scientific and technical information relating to process licensed by
and
Company relating in any way to any of the Materials or Products distributed
by
Company.
(b) “Territory”
shall mean the geographic area licensed to Fabricator as provided on Exhibit
“A”, attached hereto and incorporated herein by this reference.
(c) “Materials”
in addition to the recitals above, shall mean all components, parts, extrusions
and molds used in the fabrication of the Products.
(d) “Products”
shall mean the Company products that are identified on Exhibit “B” attached
hereto and incorporated herein by this reference, which may be amended from
time
to time by written agreement of the parties. For each Product set forth on
Exhibit “B”, there is included a list of the Materials that will be supplied to
Fabricator pursuant to the Terms and Conditions of this Agreement.
SECTION
2
DISCLOSURE
OF KNOW-HOW
2.01 As
soon
as practicable following execution of this Agreement by the parties, Company
will make disclosure of the System to Fabricator’s designated personnel during a
two (2) day training period at Company’s offices in Commerce, California.
Fabricator shall not be required to pay a fee or other remuneration to the
Company for such training but Fabricator shall pay all travel, accommodation
and
other expenses for its personnel.
2.02 Company
shall, from time to time, through its qualified personnel provide Fabricator
with required disclosures
and instructions.
2.03 All
disclosures of the System shall be subject to the terms of Section 8, below,
“Confidentiality”.
SECTION
3
GRANT
OF RIGHTS
3.01 Company
grants to Fabricator:
(a) An
exclusive license to use the System in Fabricator’s operations, and to fabricate
the Products, only in the Territory; and
(b) A
non-exclusive license to sell the finished Products, namely Dura Max vinyl
fencing, anywhere in the world.
Company
shall provide Fabricator with all sales leads within the Territory which
it
obtains; provided, however, that nothing contained herein shall obligate
Company
to provide Fabricator with any sales leads in the Territory.
3.02 Fabricator
acknowledges that Company has valid and subsisting intellectual property
rights,
including patents, inventions, trademark, trade secrets, copyrights and know-how
relating to the Materials, the construction and assembly of the Products,
the
design thereof, and the design, assembly and function of the Products and
the
Materials (the “Intellectual Property”). Company hereby grants the Fabricator a
royalty-free, non-exclusive license to use the Intellectual Property only
for
the purpose of assembling Products from Materials and reselling those products
under the Trademarks, in accordance with the terms and conditions of this
Agreement. Upon termination of this Agreement for any reason, the license
granted hereunder shall immediately terminate, and Fabricator’s further use of
the Intellectual Property shall constitute both a breach of this Agreement
and
an infringement of the Intellectual Property.
3.03 Notwithstanding
anything else contained in this agreement, it is expressly understood and
agreed
that the accounts listed on Exhibit “C” attached hereto and incorporated
herein by this reference, if any, shall be considered Common accounts (the
“Common Accounts”) and both Company and Fabricator shall have the right to sell
Products to these Common Accounts.
SECTION
4
MATERIALS
AND PRODUCTS
4.01 Fabricator
agrees to purchase exclusively from Company all Materials required by Fabricator
to fabricate the Products at the prices listed in Exhibit “B” attached
hereto or at such other prices and terms as may be established by Company
from
time to time.
4.02 Fabricator
agrees to display the trademark “DuraMAX”, together with applicable registration
particulars, in such a manner as Company may direct, on all Products and
marketing materials relating thereto produced, distributed and/or sold by
Fabricator.
4.03 Fabricator
shall not obtain Materials for Products from any other source other than
Company. Fabricator acknowledges that the Materials listed on Exhibit “B” for
each Product represent material elements of that Product, and that the use
of
the Materials not supplied by Company may adversely affect the quality or
other
characteristics of each such Product. In the event Fabricator determines
that
Materials which are not manufactured by Company are required for fabrication
of
certain of the Products (the “Unavailable Materials”), Licensee shall give
notice to Company (the “Unavailable Materials Notice”) setting forth the exact
specifications of the Unavailable Materials, the quantity required, the proposed
third party source of the Unavailable Materials, the price to be paid and
other
material terms of the proposed supply contract. Company shall have the right,
for a period of thirty (30) days after receipt of the Unavailable Materials
Notice, to notify Licensee in writing that Company intends to supply the
Unavailable Materials to Licensee at the price and terms set forth in the
Unavailable Materials Notice. If Company elects to supply the Unavailable
Materials, Licensee shall not be permitted to acquire the Unavailable Materials
from any outside source, but shall be required to purchase all such Unavailable
Materials from the Company. If Company does not so elect to supply the
Unavailable Materials, Licensee shall be entitled to procure the Unavailable
Materials from the designated third party source, on the price and terms
set
forth in the Unavailable Materials Notice until such time that Company decides
it can or wants to supply such Unavailable Materials.
4.04
Company warrants that all Materials will conform to specification as provided
to
Fabricator from time to time. For each product listed on Exhibit “B”, Company
shall supply to Fabricator its confidential specifications for the assembly
of
such Products. Fabricator shall assemble the Materials into products as to
compliance with the specifications supplied by the Company. Products shall
be
labeled and packaged in accordance with the Company’s specifications, using the
Company-supply packaging materials whenever so required by the Company’s
specifications.
SECTION
5
SALES
5.01 Sales
by
Fabricator of Products within the Territory shall be in accordance with sales
goals, plans, advertising, budgets and policies as shall be mutually agreed
upon
in writing by Company and Fabricator. Fabricator shall not fabricate, distribute
or offer for sale any vinyl fencing products which are competitive with the
Products or offer for sale, in connection with any business in which it uses
or
displays any of the System’s names and marks, any products which are not
Products manufactured by Fabricator from Materials purchased from
Company.
5.02 Fabricator’s
volume of purchased Materials will be reviewed on a semi-annual basis, for
reporting periods ending June 30 and December 31 of each calendar year during
the Term. Subject to the provisions below, after the first six (6) months
of the
Term (defined below) if Fabricator’s net purchases of Materials are less than
seventy percent (70%) in any June 30 mid-year review, or less than one hundred
percent (100%) in any December 31st year end review, of the minimum
purchase requirements set forth in Exhibit “D” attached hereto and
incorporated herein by this reference (the “Minimum Purchase Requirements”),
Company shall have the right to terminate this Agreement pursuant to Section
9.03, below.
5.03 Fabricator
shall devote its best efforts to the sale and promotion of sales of the Products
within the Territory so as to achieve maximum sales for the Products within
the
Territory. Upon Fabricator’s request and at Fabricator’s expense, Company shall
provide brochures, sales literature, marketing information and data sheets
to
Fabricator at Company’s cost, for distribution to purchasers and potential
purchasers of Products in the Territory. Company agrees to advertise
cooperatively with Fabricator, on an annual basis, in an amount equal to
the
lesser of: (i) one-third (1/3) of the amount actually spent by Fabricator
advertising DuraMAX products during the preceding twelve (12) months; or
(ii)
1.5% of Fabricator’s annual net purchases from Company.
5.04 Fabricator
shall provide and maintain, at Fabricator’s sole expense, facilities adequately
staffed by qualified personnel for purposes of efficient repair and maintenance
of all Products sold by Fabricator. All such repairs and maintenance services
shall be performed by Fabricator with respect to the Products in accordance
with
the standards and procedures furnished to Fabricator by Company from time
to
time, including without limitation, all manuals and similar aids.
5.05 Purchase
Orders.
(a) All
purchase orders Company receives for Materials from the Fabricators shall
be
made on Company’s standard purchase forms which shall set forth (i) an
identification of the Materials ordered, (ii) quantities of each, (iii)
requested delivery dates and (iv) shipping instructions and shipping address.
Payment shall be due thirty (30) days from the date of receipt of Materials
by
Fabricator. A finance charge of one and one-half (1½%) per
month, or
the maximum rate allowed by law, whichever is lesser, will be added to the
amount of all late payments. Company reserves the right to change prices,
upon
thirty (30) days prior written notice to Fabricator.
(b) Company
agrees that all purchase orders shall be expeditiously handled, and that
Company
shall use its best efforts to handle the volume of Materials that Fabricator
may
order during the term of this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, Company may refuse to accept or fill
purchase orders for any credit reason, including Fabricator’s failure to pay for
a prior shipment of Materials in a timely fashion.
(c) All
Materials received by Fabricator shall be deemed to have been accepted by
Fabricator unless Fabricator sends Company written notice of non-acceptance
by
mail or facsimile within ten (10) business days of the receipt of such
Materials. In the event of any shortage, damage or discrepancy in or to a
shipment of Materials, Fabricator shall promptly report the same to Company
and
furnish such written evidence or other documentation as Company may reasonably
request. Company shall not be liable for any such shortage, damage or
discrepancy unless Company has received notice of same thereof from Fabricator
within ten (10) business days after receipt of the Materials by Fabricator.
If
the substantiating evidence delivered by Fabricator shall reasonably demonstrate
that Company is responsible for such shortage, damage, or discrepancy, Company
shall give an immediate credit for such Material to Fabricator.
(d)
Fabricator shall keep the Materials free and clear of all levies, liens,
charges
and encumbrances and shall pay all fees, assessments, charges and taxes,
whether
municipal, state or federal, which may now or hereafter be imposed upon the
ownership, licensing, sale, possession or use of the Materials.
5.06
Quality
Control.
(a) Fabricator
agrees that all Products marketed and sold under the Agreement shall satisfy
Company’s quality standards and shall comply with all applicable laws, including
health, safety, and regulatory standards;
(b) Fabricator
shall, upon Company’s request, submit to Company for Company’s approval three
(3) representative samples of any Product that Fabricator is selling under
this
Agreement. Company shall notify Fabricator in writing whether it approves
of the
samples and whether such samples, conform to the requirements for Products
under
the Agreement. Fabricator shall promptly incorporate any such corrections
or
revisions required by Company into such Products;
(c) In
the
event Fabricator is also the installer of products, Fabricator agrees to
perform
such installation in a good and workmanlike manner, in accordance with all
applicable laws, ordinances and regulations of competent public authority.
Installation work shall be performed in accordance with policies and procedures
established by the Company from time to time. Fabricator shall provide Company,
upon Company’s request, with a list of names, addresses and contact numbers of
customers for whom Fabricator installs Products, and shall cooperate with
Company in obtaining the permission of Customers for quality control inspections
as may be reasonably requested by Company.
(d) If
Company determines, in its sole discretion, that any of the Products
manufactured or sold by Fabricator do not conform to the previously approved
samples, Company may so notify Fabricator in writing that it is immediately
withdrawing the license to use the Trademarks and Fabricator agrees that
it will
cease and desist any and all such use, either directly or indirectly,
immediately upon its receipt of such notice until notified in writing by
Company
that it may resume such use;
(e) Fabricator
shall notify Company if more than twelve percent (12%) of the Products sold
by
Fabricator during any month during the term, whether installed or uninstalled,
have been the subject of complaints or have been returned by purchasers as
defective. Fabricator shall issue such notice within ten (10) days of the
occurrence of such condition and shall include with the notice a written
plan
outlining the steps Fabricator shall take to reduce the incidence of complaints
or defects and the schedule for implementing such steps.
(f) Fabricator
shall not use the Trademarks or commit or omit any act or pursue any course
of
conduct that: (i) might tend to bring the Trademarks into disrepute; (ii)
might
in any way be likely to damage the goodwill and reputation attaching to the
Trademarks or (iii) might in any manner be likely to dilute the value or
strength of the Trademarks or registrations thereof. Fabricator shall use
the
Trademarks in the Territory strictly in accordance with the legal requirements
applicable in the Territory. Whenever Fabricator uses any of the Trademarks
that
are registered on any Product, packaging, label, advertising or other material
of any kind, such Product or Material must be marked to indicate ownership
and
registration in accordance with applicable law, and must conform to the style
or
other requirements of the Company.
(g) In
connection with the Products, Fabricator shall make no use of child, prison,
or
slave labor, nor shall Fabricator engage in any unfair labor practice or
violation of human rights. Company, directly or through an independent agent,
shall have the right to engage in reasonable inspections of each manufacturing
facility in which the Products are made by or for Fabricator, without notice
to
Fabricator, to ascertain Fabricator’s compliance with this
provision.
SECTION
6
INSURANCE
During
the term of this Agreement, Fabricator shall maintain general liability,
insurance, including product hazard insurance, and other insurances in such
amounts and providing against such risks and which such deductibles as Company
may from time to reasonably specify and with insurers agreed upon by Fabricator
and Company and which are legally entitled to provide such coverages. Fabricator
shall name Company as an additional insured and shall obtain appropriate
waivers
of subrogation and other customary endorsements. Without limiting the generality
of the foregoing, throughout the term of this Agreement. Fabricator shall
carry,
at Fabricator’ sole cost and expense, commercial general liability insurance,
including product liability and completed operations coverage and broad form
vendors and contractual liability endorsements, in the amount of not less
than
$2,000,000 combined single limit per occurrence, without any portion of such
insurance designated as self-insurance and with such insurance to be primary
over and above any other insurance available to the Company. Such coverage
shall
be on a date of occurrence form, shall name Company as an additional insured,
and shall provide for a waiver of subrogation in favor of Company. Fabricator
shall deliver to Company, as of the date this Agreement is accepted or work
begins on the goods to be delivered hereunder, a certificate of insurance
showing Company as an additional insured under the foregoing insurance coverage
and providing that such insurance shall not lapse or be canceled or modified
until the Company has been given ten (10) days prior written notice of the
intended cancellation or modification.
SECTION
7
WARRANTY
7.01 All
sales
to Fabricator shall be subject to the Company’s standard warranty in effect at
the time of shipment. The Company’s warranty can be found in Exhibit “E”
attached hereto. Fabricator shall be entitled to pass such warranty on to
its
customers, and the Company agrees to promptly comply with all warranty claims,
whether made by Fabricator or by third parties.
7.02 Fabricator
shall be responsible for satisfying all warranty claims made by purchasers
of
the Products; provided, however, that with regard to any warranty claim relating
to materials supplied by Company or the design of any Product, Fabricator
shall
supply to the Company documentation of the claim sufficient for the Company
to
determine whether the claim is related to materials or product design. If
the
Company determines that the claim is related to Materials or product design,
it
shall issue a credit to Fabricator for the costs of replacement Materials,
or if
a design defect, for the cost of the replacement Product; provided further
that
when appropriate, Fabricator shall use its commercially reasonable efforts
to
repair or replace only those Materials that are defective.
7.03 EXCEPT
AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DISCLAIMS ANY WARRANTIES WITH
RESPECT TO PRODUCTS AND MATERIALS SOLD TO FABRICATOR, WHETHER EXPRESS OR
IMPLIED, WHETHER WRITTEN OR ORAL, AND WHETHER OR NOT FROM ANY USAGE OR TRADE
OR
COURSE OF DEALING, AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
DESIGN, CONDITION, MATERIAL, WORKMANSHIP, CAPABILITY, QUALITY, SUITABILITY,
DURABILITY, PERFORMANCE, OR OTHERWISE. THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THE DESCRIPTION ON THE FACE HEREOF.
SECTION
8
CONFIDENTIALITY
8.01
Fabricator, its directors, officers, shareholders, members, managers and/or
partners acknowledge that the System and Intellectual Property disclosed
pursuant to the provisions of this Agreement is confidential. Fabricator,
its
directors, officers, shareholders, members, managers and/or partners also
acknowledge that during the term of this agreement Fabricator may have access
to
learn, or be provided with, other information relating to the Products and
System and Company’s business which are confidential. This confidential
information includes, but is not limited to, all knowledge and information
that
the Fabricator acquires from the Company regarding the design, operation,
manufacturing, packaging and marketing of the Products and System.
Fabricator
agrees that, during the term of this agreement or for two (2) years after
the
termination of this agreement, Fabricator, and its directors, officers,
shareholders, members, managers and/or partners will not disclose, directly
or
indirectly, to any person or entity, the System or the Intellectual Property,
except for information which:
(a) was
already known to the Fabricator at the time of its receipt;
(b) has
been
published or is otherwise within the public knowledge or generally known
to the
public at the time of its disclosure to the Fabricator;
(c) comes
into public domain without any breach of this Agreement; or
(d)
becomes known or available to the Fabricator, other than as a result of the
activities of the Company and without any breach of this Agreement by the
recipient.
8.02 Fabricator
acknowledges that the System and the Intellectual Property, including without
limitation, the special techniques, analyses, methods, computer hardware
and
software systems, and customer and supplier lists belong to the Company and
contain specialized information not generally known in the industry and
constitute the Company’s trade secrets as defined in the Uniform Trade Secrets
Act. In order to protect Company’s trade secrets and other confidential
information, and, in order to prevent the use of Company’s trade secrets and
other confidential information from giving Fabricator an unfair competitive
advantage in the business of manufacturing, packaging and selling a competitive
vinyl Fence shutters systems, Fabricator covenants and agrees that it and
its
directors, officers, shareholders, and employees shall not during the term
of
this agreement, including any renewal term, and for a period of three (3)
years
from the date of termination of the agreement, utilize or disclose to any
third
parties the System or the Intellectual Property.
8.03 Fabricator
acknowledges and agrees that any violation of the provisions contained in
this
Section 8, will cause such damage to Company as may be irreparable or impossible
to ascertain, and Fabricator agrees that Company will be entitled to an
injunction issued out of any court of competent jurisdiction restraining
such
violation by Fabricator, and such rights to an injunction shall be cumulative
and in addition to any other remedies Company may have under the provisions
of
this Agreement and applicable law.
SECTION
9
TERMINATION
9.01 Subject
to termination provisions below, this Agreement shall remain in full force
and
effect for a period of two (2) years from the date hereof (the “Initial Term”).
Prior to the end of the Initial Term, the parties shall negotiate regarding
new
Minimum Purchase Requirements for the coming year and if agreement is reached,
the term of this agreement shall be extended for one (1) additional year
(the
“Renewal Term”). Successive 1 year extensions shall be granted in a like manner.
Not withstanding the foregoing, either party may terminate this Agreement
at the
end of the then current Initial Term or Renewal Term upon submitting a notice
to
said effect three (3) months prior to the end of the Initial Term or Renewal
Term.
9.02 If
Fabricator uses the exclusive license granted in Section 3.01(a) in any other
locations other than the Territory, Fabricator shall be in breach of this
Agreement, and Company shall have the right to terminate this Agreement
immediately upon written notice to Fabricator.
9.03 In
the
event that, at any time during the Initial Term or any Renewal Term of this
Agreement, Fabricator’s net purchases of Materials do not meet the Minimum
Purchase Requirements specified in Section 5.02, Company may terminate this
Agreement upon sixty (60) days’ notice to said effect to
Fabricator.
9.04 In
the
event that Fabricator is in breach of any other provision of this Agreement
and
if such breach is not corrected within thirty (30) days of written notice
from
Company; provided, however, that if Fabricator breaches this Agreement more
than
twice during the Initial Term and any Renewal Term, this Agreement may be
terminated without giving Fabricator an opportunity to cure its
breach.
9.05 Company
shall have the right to immediately terminate this Agreement upon “change in the
ownership or control” of Fabricator. For purposes of this Section 9.05, a
“change in control” shall be deemed to have occurred in the event of the sale,
assignment, transfer or hypothecation of any class of stock or other ownership
interest in Fabricator in
excess
of
forty-nine percent (49%), in the aggregate, during the entire term of this
Agreement.
9.06 This
Agreement shall immediately terminate upon:
(a) The
filing of a voluntary petition and bankruptcy by Fabricator;
(b) the
execution by Fabricator of an assignment for the benefit of
creditor;
(c) the
filing of a petition to have Fabricator declared bankrupt involuntarily;
or
(d) the
appointment of a receiver or trustee for Fabricator.
9.07 Fabricator
acknowledges that, upon termination of this Agreement, all information relating
to the System shall be returned to Company forthwith and Fabricator shall
cease
all use of the trade names and trades used in connection with the System,
and
all registered user agreements shall be canceled. In event of termination
of
this Agreement, Company shall have the option, but not the obligation, in
its
sole discretion, to repurchase from Fabricator at cost any Materials
in whole or in part.
9.08
Notwithstanding the termination of this Agreement for any reason, all
obligations of Fabricator under Section 8, above, shall remain in full force
and
effect for the periods and times set forth therein.
SECTION
10
SALE,
ASSIGNMENT, AND TRANSFER
10.01 Fabricator
shall not, without the prior written consent of Company, sell, assign or
transfer any rights under this Agreement, provided that, for the purpose
of this
Agreement, Fabricator shall include any subsidiary wholly owned and controlled
by Fabricator. Any permitted assignment shall not relieve Fabricator of any
of
its primary obligations to Company under this Agreement.
10.02 Company
may, upon written notice to Fabricator, have the right to assign its rights
and
obligations under this Agreement.
SECTION
11
INDEMNIFICATION
11.01
Fabricator agrees to indemnify and hold the Company, its officers, directors,
employees, successors and assigns harmless against all losses, damages, or
expenses of whatever form, including attorneys’ fees and other costs of legal
defense which they incur as a result of any acts or omissions of Fabricator
and/or its directors, officers, managers, members, partners, employees, or
agents, including, but not limited to, (i) breach of any of the provisions
of
this Agreement, (ii) negligence (whether active or passive) or other tortious
conduct, (iii) any and all claims (and liabilities, judgments, penalties,
losses, costs, damages, and expenses resulting therefrom) relating to the
sale
of the Products by Fabricator, including the making of representations not
authorized by the Company, or (iv) violation by Fabricator (or any of its
directors, officers, managers, members, partners, employees or agents) of
any
applicable law, regulation or order in the Territory. The indemnifications
provided herein shall survive the termination of this Agreement.
SECTION
12
NOTICES
Any
and
all notices, demands or other communications required or desired to be given
hereunder by any party shall be in writing and shall be validly given or
made to
another party if served either personally or if deposited in the mail, certified
or registered, postage prepaid, to the address set forth on the signature
page
hereof. If such notice, demand or other communication is served personally,
service shall be conclusively deemed made at the time of such personal service.
If such notice, demand or other communication is given by mail, such shall
be
conclusively deemed given five (5) days after the deposit thereof in the
mails
addressed to the party to whom such notice, demand or other communication
is to
be given. If such notice, demand or other communication is given by facsimile
or
electronic mail, such shall be conclusively deemed given one (1) business
day
after being sent to the recipient by facsimile transmission or electronic
mail.
SECTION
13
NO
PARTNERSHIP OR JOINT VENTURE
Nothing
herein shall be deemed to constitute Company and Fabricator as partners,
joint
venturers, or otherwise associated in or with the business of the other.
Fabricator is and shall always remain an independent contractor, and neither
party shall be liable for any debts, accounts, obligations, or other liabilities
of the other party, its agents, or employees. Neither party is authorized
to
incur debts or other obligations of any kind on the part of or as agent for
the
other except as may be specifically authorized in writing. It is expressly
recognized that no fiduciary relationship exists between the
parties.
SECTION
14
MISCELLANEOUS
14.01 Notwithstanding
anything to the contrary set forth herein, any termination of this Agreement
shall not constitute a waiver by any party of any claim or remedy it may
have
for damages caused by reason of, or relieve any party from liability for,
any
breach of this Agreement.
14.02 Each
party warrants and represents that (a) it has been advised that it should
be
represented by counsel of its own choosing in the preparation and analysis
of
this Agreement; (b) that it has been represented by independent counsel or
has
had the opportunity to be represented by independent counsel; and (c) that
it has read this Agreement with care and believe that it is fully aware of
and
understands the contents thereof and its legal effect.
14.03 Should
any party hereto institute any action or proceeding, at law or in equity,
to
enforce any provisions of this Agreement, including an action for declaratory
relief, or for damages by reason of an alleged breach of any provision of
this
Agreement, or otherwise in connection with this Agreement, or any provision
thereof, the prevailing party shall be entitled to recover from the losing
party
or parties reasonable attorneys’ fees and costs for services rendered to the
prevailing party in such action or proceeding.
14.04 This
Agreement shall, in all respects, be governed by the laws of the State of
California applicable to agreements executed and to be wholly performed within
Los Angeles County, California. Any and all actions and proceedings arising
out
of this Agreement shall be brought in the County of Los Angeles, State of
California.
14.05 Nothing
contained herein shall be construed so as to require the commission of any
act
contrary to law, and wherever there is any conflict between any provisions
contained herein and any present or future statute, law, ordinance or regulation
contrary to which the parties have no legal right to contract, the latter
shall
prevail; but the provision of this Agreement which is affected shall be
curtailed and limited only to the extent necessary to bring it within the
requirements of the law.
14.06 Each
of
the parties hereto shall execute and deliver any and all additional papers,
documents and other assurances, and shall do any and all acts and things
reasonably necessary in connection with the performance of their obligations
hereunder to carry out the intent of the parties hereto.
14.07 No
amendment, change or modification of this Agreement shall be valid, unless
in
writing and signed by all of the parties hereto.
14.08 All
of
the terms and provisions contained herein shall, subject to the remaining
provisions of this Agreement, insure to the benefit of and shall be binding
upon
the parties hereto and their respective heirs, legal representatives, successors
and assigns.
14.09 This
Agreement constitutes the entire understanding and agreement of the parties
with
respect to its subject matter and any and all prior agreements, understandings
or representations with respect to its subject matter are hereby terminated
and
cancelled in their entirety and are of no further force or effect.
14.10 No
waiver
by any party hereto of any breach of this Agreement shall be deemed to be
a
waiver of any preceding or succeeding breach of the same or any other provision
hereof.
14.11 This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14.12 All
exhibits attached hereto are hereby incorporated by reference.
|
US
Polymers, a California corporation
|
||||
|
Xxxxx Xxxxxxxxx
|
By:
|
 |
11/11/03
|
|
|
General
Manager
|
||||
|
“Company”
|
||||
|
By:
|
||||
|
“Fabricator”
|
||||
FIRST
AMENDMENT TO FABRICATOR AGREEMENT
This
First Amendment To Fabricator Agreement (this “First Amendment”) is made and
entered into as of the 20 day of August 2008, by and between US Polymers,
Inc., a California corporation (the “Company”), and The Vinyl Fence Company,
Inc., a California corporation (the “Fabricator”), with reference to the
following facts:
A. Company
and Fabricator have entered into a certain Fabricator Agreement on Nov, 11,
2003
(the “Fabricator Agreement”)
B. Certain
issues have arisen between Company in connection with the Fabricator Agreement,
and Company and Fabricator wish to amend the Fabricator Agreement in
the manner provided herein.
NOW,
THEREFORE, in consideration of the mutual promises and other terms
and conditions contained in this First Amendment, the parties do hereby agree
as
follows:
1.
Incorporation of Recitals. The foregoing Recitals
A – B are hereby incorporated in this First Amendment in their entirety by
this reference 6. Except as expressly provided herein, the Fabricator Agreement
remains in full force and effect. In the event of any inconsistency between
this
First Amendment and the Fabricator Agreement, the provisions of this First
Amendment shall control.
2. Updated
Exhibits. The Fabricator Agreement includes certain Exhibits A
through E which will now be updated by the attached updated Exhibits A through
E.
3. Except
as
expressly provided herein, the Fabricator Agreement remains in full force
and
effect. In the event of any inconsistency between this First Amendment and
the
Fabricator Agreement, the provisions of this First Amendment shall
control.
IN
WITNESS WHEREOF, the parties do hereby execute this First Amendment as
of the date first above written.
|
US
Polymers, a California corporation
|
|||
|
8/20/08
|
By:
|
 |
|
|
“Company”
|
|||
|
The
Vinyl Fence Company, Inc.
|
|||
|
8/20/08
|
By:
|
 |
|
|
“Fabricator”
|
