Miscellaneous Aluminum Smooth Top

MISCELLANEOUS ALUMINUM SMOOTH TOP AGREEMENT

This Agreement is entered into on by and between:

Recitals

WHEREAS, Client requires fabrication, supply and/or installation of an aluminum smooth top product suitable for use as a countertop, work surface or other designated application described below; and

WHEREAS, Contractor represents that it has experience, capability and licensing (where applicable) to fabricate, finish and deliver aluminum smooth top materials in accordance with the specifications set forth in this Agreement; and

WHEREAS, the parties desire to set forth the scope, schedule, payment and other terms governing Contractor's performance.

Scope of Work

Contractor shall provide materials, fabrication, finishing, delivery and, if specified, installation for an aluminum smooth top meeting the following principal specifications:

Payment Terms

Total Contract Price: $

Late Payment: Unpaid amounts shall incur a late fee of and interest as permitted by law. Client shall pay reasonable collection costs, including attorneys' fees, for collection of overdue amounts.

Delivery, Lead Time and Title

Estimated Delivery / Installation Date:

Title to materials transfers to Client upon full payment, except as may be modified by a retained-lien notice provided under applicable law. Contractor shall bear risk of loss until delivery at the designated delivery point unless otherwise agreed in writing.

Term and Termination

Term Commencement Date:    Term End Date:

Either party may terminate this Agreement for material breach that is not cured within days' written notice to the breaching party. Termination shall not relieve Client of obligation to pay for work performed or materials procured prior to termination.

Change Orders

Any changes to the Scope of Work, price or schedule must be made in a written change order signed by both parties. Work performed without an authorized change order shall be at the performing party's risk of nonpayment unless otherwise agreed in writing.

Confidentiality

Each party (the "Receiving Party") shall keep confidential all non-public technical, business and pricing information disclosed by the other party (the "Disclosing Party") and shall not use or disclose such information except as required to perform under this Agreement. Confidentiality obligations do not apply to information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully known by the Receiving Party prior to disclosure; (c) is lawfully 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.

Warranties; Limitation of Liability

Contractor warrants that the aluminum smooth top materials will conform to the specifications set forth in this Agreement and will be free from material defects in workmanship for a period of from final acceptance. This warranty does not cover damage due to misuse, improper maintenance, alteration, or exposure to chemicals not recommended by Contractor. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, THE PARTIES DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Except for willful misconduct or gross negligence, each party's aggregate liability under this Agreement shall be limited to direct damages not to exceed the total amount actually paid by Client under this Agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES.

Insurance and Compliance

Contractor shall maintain at its expense commercial general liability insurance, automobile liability insurance (if applicable) and workers' compensation as required by law. Contractor shall comply with all applicable federal, state and local laws, codes and regulations in performing work under this Agreement.

Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the state identified as the governing jurisdiction: . The parties agree to negotiate in good faith to resolve disputes and, if unresolved, submit disputes to binding arbitration in the foregoing state under the rules of a recognized arbitration authority, with judgment on the award entered in a court of competent jurisdiction.

Entire Agreement; Assignment

This Agreement, including all attachments and executed change orders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, proposals and communications. Neither party may assign its rights or obligations without the prior written consent of the other party, except that Contractor may assign receivables.

Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses provided above or to such other address as either party may designate in writing, and shall be deemed given when delivered personally, sent by certified mail, or by nationally recognized overnight courier.

Signatures

The persons signing below represent and warrant that they are authorized to execute this Agreement on behalf of the party for which they sign.

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