Business Foam Agreement

BUSINESS FOAM AGREEMENT

Effective Date:

Parties

Recitals

WHEREAS, Provider is engaged in the design, development, manufacture and supply of foam products and related services and has expertise and capacity to perform the services described in this Agreement; and

WHEREAS, Client desires to retain Provider to perform services for the production, finishing and delivery of foam goods and related consulting as set forth below, and Provider agrees to provide such services under the terms and conditions of this Agreement.

WHEREAS, the parties wish to set forth their respective rights and obligations in writing.

Scope of Work

Provider shall perform the work described below and deliver the deliverables in accordance with the schedule and specifications agreed by the parties.

Payment Terms

Client shall pay Provider fees for the services and deliverables as set forth below. All amounts are exclusive of taxes unless otherwise stated. Provider shall invoice Client in accordance with the payment schedule. Unless otherwise agreed, payment is due within the period specified below from the date of invoice.

Provider may suspend performance for overdue amounts if Client fails to pay within the invoice due period following written notice. Client shall be responsible for collections costs and reasonable attorneys' fees incurred to recover delinquent amounts.

Term and Termination

This Agreement commences on Start Date and continues until End Date unless earlier terminated in accordance with this section.

Start Date:    End Date:

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure the breach within the notice period following written notice. Termination shall not relieve Client of the obligation to pay for services performed and deliverables completed through the effective date of termination.

Confidentiality

Each party shall maintain in confidence all non-public information disclosed by the other party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure ("Confidential Information"). Confidential Information shall not include information that: (a) is or becomes public through no breach; (b) was known to the receiving party prior to disclosure; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of the disclosing party's Confidential Information.

The receiving party shall not disclose Confidential Information to third parties except to employees, contractors and professional advisors who have a need to know and who are bound by confidentiality obligations no less protective than those contained herein. Upon termination or request, the receiving party shall return or destroy the disclosing party's Confidential Information.

Intellectual Property

Provider retains all right, title and interest in any pre-existing intellectual property or tools developed outside this Agreement. Unless otherwise agreed in writing, upon receipt of full payment, Provider assigns to Client ownership in and to the final deliverables specifically produced for Client under this Agreement. Provider may retain copies for its internal records and for quality assurance purposes.

Indemnification; Limitation of Liability

Each party shall indemnify, defend and hold harmless the other party from third-party claims arising out of the indemnifying party's gross negligence, willful misconduct or breach of its representations in this Agreement. Except for liability resulting from gross negligence, willful misconduct, or a party's breach of confidentiality or intellectual property obligations, neither party's aggregate liability to the other for any claim arising under this Agreement shall exceed the total fees paid by Client to Provider under this Agreement in the twelve (12) months preceding the claim.

Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as either party may designate by written notice.

Governing Law; Entire Agreement

This Agreement shall be governed by and construed in accordance with the laws of the state of without regard to its conflict of law principles. The parties agree that the state and federal courts located in that state shall have exclusive jurisdiction over any disputes arising out of this Agreement.

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

Miscellaneous

Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to a successor in interest in connection with a merger, acquisition or sale of substantially all assets, provided that the assignee assumes all obligations hereunder. If any provision of this Agreement is found to be unenforceable, the remaining provisions will remain in full force and effect.

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