This Letter of Agreement (“Agreement”) is made and entered into by and between ENTER (“Buyer”), whose address is ENTER, and BENDPAK, INC. (“BendPak”), whose address is 1645 Lemonwood Dr., Santa Paula, CA 93060.
The purpose of this Agreement is to establish the terms and conditions under which third-party contractors (“Contractors”), recommended to Buyer by BendPak, then subsequently hired by Buyer to perform Services shall be governed.
This Agreement shall commence on the Effective Date set forth herein below and shall continue in perpetuity unless this Agreement is rightfully terminated by either party.
4. GENERAL PROVISIONS.
4.1. All services performed (“Services”), by Contractor for Buyer shall, as between Buyer and BendPak, be subject to these terms and conditions.
4.2. The decision of Buyer to select, hire and/or manage Contractors recommended by BendPak to Buyer is the sole responsibility of Buyer. BendPak assumes no liability for the selection of the Contractor or the Contractor’s performance of services for Buyer. Contractors are not agents for, or joint venturers of, and are not employed by, and are not the agents of, BendPak.
4.3. Buyer shall indemnify and hold harmless, and upon request by BendPak, shall defend BendPak, its officers, directors, agents, or employees, against any and all claims liability, loss or damage, including attorney fees, arising out of any personal injury or death or damage to or loss or destruction of property arising out of, connected with or incidental to Buyer’s provision of Goods or Services, whether or not said claims or actions are founded upon the negligence or alleged negligence of BendPak; provided however, this indemnity shall not apply where such injury to death of persons or damage to or loss or destruction of property is caused by the sole negligence of BendPak.
4.4. BendPak does not make and expressly disclaims any warranty, guarantee, or promise, whether expressed or implied, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose, of the Services of the Contractor selected and hired by Buyer. BendPak shall not be liable for any direct, indirect, special or other consequential damages of whatever kind (including without limitation, injury, death, loss of profits, anticipated savings or earnings, other revenues, data, goodwill or contracts), resulting from Services by Contractor hired by Buyer.
5. GOVERNING LAW; JURISDICTION.
5.1. Any controversy arising out of or related to this Agreement shall be construed and governed by the laws of the State of California, including the California Uniform Commercial Code regardless of the laws that might be applicable under principles of conflicts of law. Subject to the arbitration provision set forth in Section 5.3, each party shall bring any claim or action related to or arising from this Agreement only in the Superior Court for the State of California, County of Ventura, or in the Federal District Court for the Central District of California.
5.2. The parties expressly waive any objection based on personal jurisdiction, venue or forum non conveniens.
5.3. Any dispute which may arise from or in connection with this Agreement shall be settled amicably as far as possible, but in case of failure of the matter to settle, the matter shall be submitted for determination by arbitration as follows: Claims or demands asserted by either BendPak or Buyer or other parties acting under their authority shall be submitted for binding arbitration under the rules for Commercial Arbitration of the American Arbitration Association in proceedings to be held in the City of Ventura, State of California, USA.
Any required notices shall be delivered by hand or sent by courier, facsimile, e-mail, express mail (or its equivalent), or postage prepaid certified or registered mail at the addresses provided herein above, and shall be deemed effective on the earlier of five (5) business days after having been sent or the date of actual receipt, provided proof of delivery is obtained. Either party may change its address for notice by giving written notice to the other party of the change.
7.1. These terms and conditions set forth the entire understanding and Agreement of the parties in respect of the subject matter hereof. No provisions shall be waived, changed, terminated, or rescinded, except by a writing signed by the party to be charged by any such waiver, change, termination or rescission. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any similar or dissimilar provision prior to subsequent breach or shall constitute an amendment or modification of this Agreement.
7.2. If any provision of this Agreement shall be held to be unenforceable or inapplicable, such holding shall not affect the enforceability of any other provision of this Agreement.
7.3. No contract for the purchase of Goods from BendPak or the performance of Services by BendPak may be assigned by Buyer without the prior written consent of BendPak. The provisions of this Agreement otherwise shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns.
7.4. Each party represents and warrants that all necessary corporate or entity action has been taken sufficient to enable such corporation or entity to enter into this Agreement, to be bound thereby and to perform fully as required hereunder. Each person executing this Agreement on behalf of an entity represents and warrants that he/she has been duly authorized to enter into this Agreement on behalf of the entity.