Business Filler Cap Document

Business Filler Cap Document

Parties and Effective Date

This Business Filler Cap Document (the Agreement) is entered into by and between (Client) and (Provider), effective as of .

WHEREAS

WHEREAS, Provider supplies industrial and commercial filler materials and related services for Client's business operations; and

WHEREAS, Client desires to establish a contractual cap on the aggregate fees payable to Provider for certain specified filler products and services during the Cap Period, and Provider is willing to supply such products and services subject to the terms and conditions set forth in this Agreement; and

WHEREAS, the parties intend that this Agreement define the scope, payment terms, and maximum financial exposure (the Cap Amount) associated with Provider’s obligations specified herein.

Scope of Work

Provider shall furnish the filler products and perform the services described below in accordance with industry standards and the schedule agreed by the parties:

Cap Amount and Payment Terms

Cap Amount (maximum aggregate fees payable under this Agreement): $ .

Payment Schedule: Client shall pay Provider in accordance with the following schedule and invoicing requirements:

Invoice Due Terms: Net days from date of invoice. Any amounts invoiced in excess of the Cap Amount shall not be payable by Client except as expressly agreed in writing.

Late Payment: Unpaid amounts shall accrue interest at the lesser of (a) , or (b) the maximum rate permitted by law, calculated monthly and compounded. Client shall also be responsible for reasonable collection costs and attorneys’ fees if amounts remain delinquent.

Term and Termination

Term Commencement Date: . Term Expiration Date: .

Either party may terminate this Agreement for convenience upon providing days' prior written notice to the other party. Either party may terminate for material breach if the breaching party fails to cure such breach within days after receipt of written notice specifying the breach.

Termination shall not relieve Client of its obligation to pay for goods delivered and services performed prior to termination, subject to the Cap Amount and any applicable offsets for Provider’s failure to perform.

Confidentiality

Each party (the Receiving Party) shall hold in strict confidence and shall not disclose to any third party Confidential Information of the other party (the Disclosing Party). "Confidential Information" means non-public business, technical, pricing, financial, product or operational information disclosed in any form that is designated as confidential or that reasonably should be understood to be confidential. Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a breach of this Agreement; (b) was already known to the Receiving Party prior to disclosure by the Disclosing Party; (c) is rightfully received from a third party without restriction; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.

The Receiving Party may disclose Confidential Information as required by law or court order provided it gives prompt written notice to the Disclosing Party and uses reasonable efforts to obtain confidential treatment. The obligations of confidentiality shall survive termination of this Agreement for a period of years.

Representations; Warranties; Liability Cap

Each party represents that it has the authority to enter into this Agreement. Provider warrants that the products and services shall materially conform to the Scope of Work. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE PARTIES' AGGREGATE LIABILITY TO EACH OTHER UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE CAP AMOUNT ACTUALLY PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflict of law rules. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation among senior representatives. If the dispute is not resolved by negotiation within thirty (30) days, the parties may pursue any remedy available at law or in equity.

Entire Agreement; Amendments

This Agreement, including any exhibits and schedules incorporated herein, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral. Any modification or amendment to this Agreement must be in writing and signed by authorized representatives of both parties.

Notices

All notices under this Agreement shall be in writing and delivered to the addresses set forth above (or to such other address as either party may designate in writing). Notices are effective upon personal delivery, one business day after delivery to a nationally recognized overnight courier, or three business days after mailing by certified mail, return receipt requested.

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