SETTLEMENT, WAIVER AND RELEASE AGREEMENT This Settlement, Waiver and Release Agreement (the "Agreement") is made as of _____, 200_ (the "Effective Date"), by and between ABC, Inc. ("ABC") and XYZ, Inc., an Illinois corporation ("XYZ").
RECITALS A. XYZ purchased certain computer hardware products from ABC, pursuant to those certain purchase orders identified on Exhibit A attached hereto (collectively the "Purchase Order"). Currently there is due ABC from XYZ the sum of $26,861.00 on the purchase of these products ("Disputed Debt"). XYZ refuses to pay the full amount of the Disputed Debt because of certain alleged defects with the purchased computers. B. XYZ and ABC desire to settle this dispute according to the terms contained herein. CLAUSES In consideration of the covenants and undertakings herein contained, the parties agree as follows: 1. Settlement Payment. Concurrent with the receipt of an executed copy of this Agreement from ABC, XYZ will pay to ABC the sum of $13,430.50 in full and final satisfaction of the Disputed Debt and any sums due from XYZ under the Purchase Order. 2. Release. ABC, on behalf of itself and its respective officers, directors, shareholders, employees, agents, partners, affiliates, successors and assigns (collectively the "ABC Computers Group"), knowingly, irrevocably and unconditionally releases, renounces and forever discharges XYZ and its respective affiliates, agents, employees, officers, directors, shareholders, predecessors, successors and assigns (collectively the "XYZ Group"), from any and all claims, demands, actions, rights, interests and causes of action (collectively, the "Claims") which any member of the ABC Computers Group has ever had, may now have, or may have in the future, which in any way pertain to all matters, facts, occurrences, actions or omissions which arose on or prior to the Effective Date and/or which in any manner involve, concern or are predicated on the Disputed Debt or the Purchase Order. This release specifically includes, but is not limited to the waiver by ABC of any and all claims, liens, encumbrances, rights, or interests it may have against or be entitled to claim against XYZ. 3. Authority. ABC represents and warrants to XYZ that: (i) it has full authority to execute this Agreement; (ii) its execution of this Agreement does not require the consent of any third party and has been authorized by all appropriate and necessary corporate actions; (iii) all matters which are released in this Agreement have not been assigned, transferred or disposed of in fact, by operation of law or in any other manner; and (iv) this Agreement constitutes the legal, binding obligation of ABC, enforceable against it in accordance with its terms. 4. Prior Covenants, Warranties, and Representations of ABC Computers All covenants, warranties, and representations made by ABC in all prior agreements between XYZ and ABC including the Purchase Order are hereby ratified, confirmed and reaffirmed by ABC and continue in full force and effect. Nothing herein contained shall limit or affect ABC's warranty obligations under its agreements with XYZ. In furtherance thereof, ABC agrees that with respect to all products previously purchased by XYZ from ABC under the attached Purchase Order (i) any warranty claim made by XYZ shall be repaired and returned to XYZ or replaced within forty-eight (48) hours after receipt, and (ii) any costs and expenses incurred by XYZ to repair or replace any such items that have not been satisfied within said forty-eight (48) hour period shall be immediately due and owing from ABC upon written demand. 5. General.
(a) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the ABC Computers Group and the XYZ Group and their respective heirs, personal representatives, successors and assigns. (b) Complete Understanding. This Agreement constitutes the complete understanding between the parties. No alteration or modification of any provision of this Agreement shall be valid unless made in writing and signed by both the parties. (c) Severability. If a court of competent jurisdiction rules that any one or more of the provisions of this Agreement are invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if it had never contained such invalid, illegal or unenforceable provision. (d) Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes constitute part of one original. (e) Costs of Enforcement. In the event that either party institutes any proceedings to enforce the terms and conditions of this Agreement, all the costs or expenses (including reasonable attorneys' fees) incurred by the prevailing party hereto to enforce the terms and conditions of this agreement shall be paid by the other party in such proceedings. (f) Applicable Law. The laws of the State of Illinois (other than those which pertain to conflicts of law) shall govern this Agreement, irrespective of the fact that any of the parties is presently or may become a resident of a different state. The parties shall submit all disputes which arise under this Agreement to state or federal courts located in the City of Chicago, Illinois for resolution. The parties acknowledge the aforesaid courts shall have exclusive jurisdiction over this Agreement and specifically waive any claims which they may have that involve jurisdiction or venue, including but not limited to forum non conveniens. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
XYZ, Inc.
ABC Computers, Inc.
__________________________________ By:_____________________________ Its: _____________________________
___________________________________ By:______________________________ Its: ______________________________
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