Preview
1 LANAK & HANNA, P.C.
Michael K. Murray, Esq. (Bar No. 265785)
2 625 The City Drive South, Suite 190
Orange, CA 92868
3 Telephone: (714) 620-2350
Facsimile: (714) 703-1610
4 mkmurray@lanak-hanna.com
5 Attorneys for Plaintiff,
MERCHANTS METALS, LLC
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF RIVERSIDE—HISTORIC COURTHOUSE
10
lanak&hanna
11 MERCHANTS METALS, LLC, a Delaware Case No.
limited liability company,
12 Unlimited Jurisdiction
Plaintiff,
13 COMPLAINT FOR:
v.
14 1. BREACH OF CONTRACT
2. GOODS SOLD AND
15 PARAMOUNT FENCE BUILDERS, INC., a DELIVERED/AGREED PRICE
California corporation; 3. OPEN BOOK ACCOUNT
16 and DOES 1 through 25, inclusive, 4. ACCOUNT STATED
17 Defendants.
18
19 AMOUNT OF COMPLAINT $166,477.05
20 Plaintiff alleges:
21 GENERAL ALLEGATIONS
22 1. Plaintiff was at all times mentioned, and now is, a Delaware limited liability company
23 authorized to do business and doing business in the State of California.
24 2. Plaintiff is informed and believes and thereon alleges that the activities complained of
25 and/or obligations sued upon herein are proper within this judicial district pursuant to a contractual
26 venue provision and based on Defendant’s place of business and the Defendants, and each of them, are
27 indebted to Plaintiff on the obligations sued on herein.
28 3. Plaintiff is informed and believes and thereon alleges that Paramount Fence Builders, Inc.
{2267 29337} 1
COMPLAINT
1 is a California corporation and is hereinafter referred to as “Paramount”.
2 4. Plaintiff is ignorant of the true names and capacities of the Defendants sued as Does 1
3 through 25, inclusive. Therefore, Plaintiff sues these Defendants by such fictitious names. Plaintiff will
4 amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed
5 and believes, and thereon alleges, that each of the fictitiously named Defendants is indebted to Plaintiff
6 as alleged, and that Plaintiff's rights against such fictitiously named Defendants arises from such
7 indebtedness.
8 FIRST CAUSE OF ACTION
9 BREACH OF CONTRACT
10 (As Against Defendant Paramount; and Does 1 through 25, inclusive.)
lanak&hanna
11 5. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its
12 allegations contained in Paragraphs 1 through 4 herein.
13 6. Plaintiff and Defendants Paramount; and Does 1 through 25, inclusive entered into a
14 written agreement under which Plaintiff would sell fencing and fencing related products to Paramount;
15 and Does 1 through 25, inclusive on credit and that Paramount; and Does 1 through 25, inclusive would
16 pay Plaintiff for the fencing and related materials. The terms of the written agreement are provided on
17 the invoices and the online terms and conditions of Plaintiff at www.merchantsmetals.com. Payment on
18 each invoice is due within 30 days from the date of the invoice. A true and correct copy of the written
19 terms and conditions are attached hereto as Exhibit 1.
20 7. Plaintiff performed all its requirements under the terms of the agreement, including
21 selling fencing and related materials to Paramount; and Does 1 through 25, inclusive on credit.
22 10. Paramount; and Does 1 through 25, inclusive have breached the agreement by failing to
23 pay the sum of $166,477.05 for fencing and related materials purchased by Paramount; and Does 1
24 through 25, inclusive from Plaintiff on credit pursuant to the terms of the agreement.
25 11. By reason of the foregoing and of the failure and refusal of Paramount; and Does 1
26 through 25, inclusive to pay for the fencing and related materials provided by Plaintiff, Plaintiff has been
27 damaged in the principal sum of $166,477.05, plus interest from the date each outstanding invoice was
28 due until paid and costs of suit.
{2267 29337} 2
COMPLAINT
1 SECOND CAUSE OF ACTION
2 GOODS SOLD AND DELIVERED/AGREED PRICE
3 (As Against Defendant Paramount; and Does 1 through 25, inclusive.)
4 12. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its
5 allegations contained in Paragraphs 1 through 4 herein.
6 13. Within the last four years Paramount; and Does 1 through 25, inclusive became indebted
7 to Plaintiff in the agreed principal sum of $166,477.05 for fencing and related construction materials
8 sold and delivered to Paramount; and Does 1 through 25, inclusive by Plaintiff, and Paramount; and
9 Does 1 through 25, inclusive then and there agreed to pay the agreed amount.
10 14. The full sum amount has not been paid, although demand therefore has been made, and
lanak&hanna
11 there is now due, owing and unpaid from Paramount; and Does 1 through 25, inclusive to Plaintiff in the
12 principal sum of $166,477.05, plus interest at the legal rate from the date the invoice became due, until
13 paid and costs of suit.
14 THIRD CAUSE OF ACTION
15 OPEN BOOK ACCOUNT
16 (As Against Defendant Paramount; and Does 1 through 25, inclusive.)
17 15. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its
18 allegations contained in Paragraphs 1 through 4 herein.
19 16. Within the last four years Paramount; and Does 1 through 25, inclusive became indebted
20 to Plaintiff on an open-book account for money due in the principal sum of $166,477.05 for fencing and
21 related material provided by Plaintiff to Paramount; and Does 1 through 25, inclusive, and at Paramount;
22 and Does 1 through 25, inclusive’ s special instance and request, and Paramount; and Does 1 through 25,
23 inclusive agreed to pay the above sum.
24 17. Neither the whole nor any part of the above sum has been paid, although demand
25 therefore has been made, and there is now due, owing and unpaid, the principal sum of $166,477.05,
26 plus interest at the legal rate from the date the invoice became due until paid, plus statutory attorney’s
27 fees and costs of suit.
28 ///
{2267 29337} 3
COMPLAINT
1 FOURTH CAUSE OF ACTION
2 ACCOUNT STATED
3 (As Against Defendant Paramount; and Does 1 through 25, inclusive.)
4 18. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its
5 allegations contained in Paragraphs 1 through 4 herein.
6 19. Within the last four years an account was stated in writing by and between Plaintiff and
7 Paramount; and Does 1 through 25, inclusive wherein it was agreed that Paramount; and Does 1 through
8 25, inclusive was indebted to Plaintiff in the principal sum of $166,477.05.
9 20. Neither the whole nor any part of the above sum has been paid, although demand
10 therefore has been made, and there is now due, owing and unpaid the principal sum of $166,477.05,
lanak&hanna
11 together with interest at the legal rate from the date the invoice became due, until paid and costs of suit.
12 WHEREFORE, Plaintiff prays for judgment against the Defendants, as follows:
13 AS TO THE FIRST, SECOND, THIRD AND FOURTH CAUSE OF ACTION:
14 1. For judgment against Paramount Fence Builders, Inc., a California corporation; and Does
15 1 through 25, inclusive, for the principal sum of $166,477.05, plus interest at the maximum legal rate
16 from the date the unpaid invoices became past due, until paid, plus statutory attorney fees as allowed
17 and costs.
18 AS TO ALL CAUSES OF ACTION:
19 2. For costs of suit herein incurred;
20 3. For such other and further relief as the Court deems just and proper.
21
22 Dated: January 4, 2023 LANAK & HANNA, P.C.
r
23
l
24 By: ____________________________
MICHAEL K. MURRAY
25 Attorney for Plaintiff,
MERCHANTS METALS, LLC.
26
27
28
{2267 29337} 4
COMPLAINT
EXHIBIT 1
Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/
ARCHITECTS & SPECIFIERS CONTRACTORS HOME & BUSINESS OWNERS ·-
·-
I FE-FENCE ESTIMATOR ABOUT
AE PRODUCTS SPECIFICATIONS RESOURCES
CONTACT US
Terms & Conditions
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Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/
TERMS & CONDITIONS OF QUOTATION
1. QUOTATION: A quotation from Merchants Metals, LLC (hereafter referred to as “MM”) is valid for 30 days fro
·-
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be accepted by the buyer (“Buyer”) by submitting to MM before the end of the 30 day period a purchase orde
“Purchase Order”). In the event Buyer attempts to accept a Quotation after the 30 day period, MM will review
discretion, accept the Quotation as presented, reject it, or make a counterproposal. Quotations are based on
provided by Buyer. MM may re-quote a job at time of submission of a Purchase Order from Buyer if the spec
included in the Purchase Order differ from the information used for purposes of the original Quotation.
2. CONTRACT AND ACCEPTANCE: (a) All sales of goods (“Ordered Products”) by MM to Buyer shall be subj
terms and conditions (the “Terms and Conditions”), which form an integral part of any Purchase Order placed
agree in writing, (i) the offer of MM to sell Ordered Products as set forth in the Quotation is expressly conditio
Terms and Conditions without any additional or different terms, conditions or warranties, and Buyer’s accepta
a Purchase Order with respect thereto shall be deemed to be Buyer’s assent to these Terms and Conditions
conditions or warranties contained in any Purchase Order, confirmation or other communication delivered by
not be binding on MM, and the accepted Quotation, together with these Terms and Conditions and any applic
and exhibits attached by MM to the Quotation (collectively, the “Agreement”), shall constitute the entire agree
subject matter thereof.
(b) No cancellation of a Purchase Order, change to Ordered Products set forth on a Purchase Order previo
obligations of MM hereunder shall be effective without the prior written consent of MM, which consent may
discretion. In the event that Buyer wishes to cancel any Purchase Order, MM reserves the right, as a cond
to charge a cancellation fee and or restocking fee for costs incurred as determined by MM in its reasonable
without limitation, special ordered materials and other specialty items.
3. TITLE AND DELIVERY:
All shipments of goods shall be delivered F.O.B. MM’s plant, and title and liability for loss or damage theret
delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve
Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any othe
clearance required at port of entry and destination.
Shipping dates are approximate only. MM shall not be liable for any loss or expense, whether by way of co
otherwise) incurred by Buyer if MM fails to meet the specified estimated delivery schedule because of unav
provisions of Paragraph 3 apply to both domestic and international shipments, except that title to goods sh
point of destination; risk of loss or damage and all expenses associated with goods shipped outside the U.
Buyer.
4. PURCHASE PRICE:
(a) For each Ordered Product, Buyer shall pay MM all fees designated in the Quotation (as they may be m
which designated fees may include, without limitation, costs appropriate to manufacture the Ordered Produ
(collectively, the “Purchase Price”). Terms are C.O.D., unless other arrangements are made in writing with
Once credit has been established on terms mutually agreeable to the parties, these accounts are subject t
Department of the seller. And if in its sale discretion the financial position of the Buyer has changed prior to
may refuse to complete same or to make delivery of any further work or materials pending modification of t
agree that such action on the part of the Seller shall not be a cause of incurring any liability for damages ag
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(b) If any invoice remains unpaid thirty (30) days after the original invoice date, MM shall be entitled (witho
other rights of MM) to charge interest on the unpaid balance from the date due at a rate equal to the lesser
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rate permitted by applicable law. If any outstanding balance remains unpaid thirty (30) days after the origin
limiting any of its other rights and remedies, suspend the manufacturing or delivery of any or all Ordered P
by Buyer or its affiliates, and/or alter or suspend any credit previously or thereafter extended to Buyer or its
for and shall reimburse MM for all costs and expenses of collection, including, without limitation, reasonabl
by Buyer are subject to collection.
(c) If Buyer has a dispute regarding any invoice, Buyer must inform MM within ten (10) business days after
regarding the nature of the dispute. Buyer shall nonetheless pay the undisputed amount within the otherwi
(d) The Purchase Price set forth in the Quotation is exclusive of all taxes, including, without limitation, fede
and other taxes, now or hereafter levied or imposed on the sale, delivery or use of Ordered Products, and
pay all such taxes, regardless of whether included on any invoice.
5. ACCEPTANCE OF ORDERED PRODUCTS: Buyer shall inspect and accept or reject the Ordered Products
have ten (10) business days thereafter to give written notice to MM of any claim that the Ordered Products a
conform to the agreed upon terms or contain material defects. If Buyer fails to give such notice, the Ordered
to the Purchase Order and Buyer shall be deemed to have accepted the Ordered Products. Buyer’s sole rem
Products that are of insufficient quantity shall be for MM to deliver the undelivered quantity of Ordered Produ
respect to any defective Ordered Product shall be the replacement of the defective Ordered Product by MM.
6. DISCLAIMER; LIMITATIONS OF LIABILITY:
(a) EACH ORDERED PRODUCT IS PROVIDED ON AN “AS IS” BASIS. MM DOES NOT MAKE ANY REP
EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT, AND MM
IMPLIED WARRANTY WITH RESPECT TO EACH ORDERED PRODUCT, INCLUDING, BUT NOT LIMIT
QUALITY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNES
OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER MM NOR AN
ANY OTHER OBLIGATION OR RESPONSIBILITY WITH RESPECT TO THE ORDERED PRODUCTS, AN
AFFILIATES HAS AUTHORIZED ANY PERSON TO ASSUME ANY OTHER OBLIGATION OR RESPONS
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, IN NO EVENT SHALL
OTHER PERSON FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMP
LOSS OF USE, LOSS OF TIME, INCONVENIENCE, OR LOSS OF PROFIT DAMAGES OF ANY KIND O
OUT OF OR RELATING TO THE AGREEMENT OR ANY ORDERED PRODUCT, EVEN IF MM IS ADVISE
DAMAGES, AND REGARDLESS OF WHETHER THE FOREGOING DAMAGES ARE BASED ON DEFEC
NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OR OTHER TORT, WARRANTY, CONTRACT, INDE
STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AG
LIABILITY, IF ANY, OF MM AND ITS OFFICERS AND EMPLOYEES FOR ALL DIRECT DAMAGES RESU
PRODUCT AND MM’s OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL P
RESPECT TO THE APPLICABLE ORDERED PRODUCT.
7. INDEMNITY: Buyer shall indemnify, defend and hold harmless MM and its affiliates, officers, directors, emplo
(collectively, the “MM Indemnified Parties”), from and against any and all third party claims, and all costs, dam
(including reasonable attorneys’ fees and costs) incurred in connection with such third party claims (collectiv
resulting from or relating to (a) MM’s production of any Ordered Product in conformity with Buyer’s specificat
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Product. By way of example and not limitation, Claims for which Buyer may be obligated to indemnify a MM
provision include, without limitation, third party claims (i) for death, personal injury, damage to property or da
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Ordered Product violates any applicable law, or (iii) that the Ordered Product infringes on any intellectual pro
without limitation, any patent, copyright, trademark, trade secret or other intellectual property right). If Buyer f
Party as required by this Agreement, then Buyer shall pay for any damages (including reasonable attorneys’
and costs incurred by the MM Indemnified Party in the prosecution of any action to enforce the terms of this A
thereof.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION: All proprietary designs, drawings, and other inform
other party and identified as “Confidential,” “Proprietary,” or with words of like import shall be received by the
and, to the extent such information is the property of the disclosing party when disclosed to the receiving par
disclosing party. The foregoing restrictions shall not apply to (a) information within the legitimate possession
obligation of nondisclosure before receipt of the information from the disclosing party (or an affiliate of the dis
the time of disclosure by the disclosing party, then in the public domain or thereafter comes into the public do
party; (c) information that is obtained by the receiving party from a third party with legitimate possession ther
such disclosure; or (d) information ordered to be disclosed by a court of competent jurisdiction or other gover
authority, provided the receiving party first notifies the disclosing party in writing as soon as reasonably poss
information, and reasonably cooperates with the disclosing party if the disclosing party elects to contest and/
obtain confidential treatment of the information to be disclosed.
9. MISCELLANEOUS: (a) Independent Contractors. The relationship of the parties hereunder is that of indepe
one hand, nor Buyer on the other hand, shall have any power to bind the other or to create any obligation on
represent that it has any such power.
(b) Promotional Matters. MM may issue press releases and other marketing and promotional material desc
Agreement, including, without limitation, displaying the Ordered Products provided to Buyer as examples o
MM. In addition, in connection with the production of the Ordered Products hereunder, Buyer hereby grants
any advertising and publicity materials of MM identifying Buyer as a customer of MM.
(c) Governing Law; Dispute Resolution. The Agreement shall be governed by, and construed in accordanc
Georgia without giving effect to any choice or conflict of laws provision or rule that would cause the applica
than Fulton County, Georgia. The United Nations Convention on Contracts for the International Sale of Go
purchase of Ordered Products. MM, in its sole discretion, may elect to sue Buyer in the jurisdiction coverin
in any jurisdiction in which any assets of Buyer may be found, and in the event an action is brought by a th
Party for which the MM Indemnified Party may be entitled to indemnification under the Agreement, the MM
discretion, bring a claim for indemnity against Buyer in the forum in which the original action is pending. EA
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHET
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(d) Force Majeure. MM shall not be deemed to be in default or in breach of the Agreement, or otherwise lia
way, for any interruption, disruption, delay or failure in the performance of its obligations under the Agreem
any cause or circumstance beyond its reasonable control, including, but not limited to, acts of God, war or
embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, del
equipment or facilities, or shortages of fuel or materials (each, a “Force Majeure Event”); provided, a Force
party from its obligation to pay any monies owed to the other party under the Agreement.
(e) Severability; Waiver If any term or condition hereof is held to be invalid or unenforceable the remaining
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(e) Severability; Waiver. If any term or condition hereof is held to be invalid or unenforceable, the remaining
remain in full force and effect and shall be enforceable to the maximum extent permitted by law. The failure
provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the righ
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(f) Survival of Provisions. The following provisions shall survive the termination of this Agreement for any re
(Disclaimer; Limitation of Liability), 7 (Indemnity), 8 (Nondisclosure of Confidential Information) and 9 (Misc
(g) Amendment; Assignment. This Agreement may not be amended or otherwise modified except by a writ
not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other pe
written consent of MM.
(h) Third Party Beneficiaries. The Agreement is not intended to benefit any third party and the parties do no
not be deemed to create, any third party beneficiary rights hereunder; provided, however, that notwithstand
Parties are intended third party beneficiaries of the Agreement.
(i) Entire Agreement. The Agreement constitutes the entire agreement and understanding of the parties wi
and supersedes any and all prior agreements and understandings with respect thereto.
END OF TERMS AND CONDITIONS
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Preview
1 LANAK & HANNA, P.C. Michael K. Murray, Esq. (Bar No. 265785) 2 625 The City Drive South, Suite 190 Orange, CA 92868 3 Telephone: (714) 620-2350 Facsimile: (714) 703-1610 4 mkmurray@lanak-hanna.com 5 Attorneys for Plaintiff, MERCHANTS METALS, LLC 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF RIVERSIDE—HISTORIC COURTHOUSE 10 lanak&hanna 11 MERCHANTS METALS, LLC, a Delaware Case No. limited liability company, 12 Unlimited Jurisdiction Plaintiff, 13 COMPLAINT FOR: v. 14 1. BREACH OF CONTRACT 2. GOODS SOLD AND 15 PARAMOUNT FENCE BUILDERS, INC., a DELIVERED/AGREED PRICE California corporation; 3. OPEN BOOK ACCOUNT 16 and DOES 1 through 25, inclusive, 4. ACCOUNT STATED 17 Defendants. 18 19 AMOUNT OF COMPLAINT $166,477.05 20 Plaintiff alleges: 21 GENERAL ALLEGATIONS 22 1. Plaintiff was at all times mentioned, and now is, a Delaware limited liability company 23 authorized to do business and doing business in the State of California. 24 2. Plaintiff is informed and believes and thereon alleges that the activities complained of 25 and/or obligations sued upon herein are proper within this judicial district pursuant to a contractual 26 venue provision and based on Defendant’s place of business and the Defendants, and each of them, are 27 indebted to Plaintiff on the obligations sued on herein. 28 3. Plaintiff is informed and believes and thereon alleges that Paramount Fence Builders, Inc. {2267 29337} 1 COMPLAINT 1 is a California corporation and is hereinafter referred to as “Paramount”. 2 4. Plaintiff is ignorant of the true names and capacities of the Defendants sued as Does 1 3 through 25, inclusive. Therefore, Plaintiff sues these Defendants by such fictitious names. Plaintiff will 4 amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed 5 and believes, and thereon alleges, that each of the fictitiously named Defendants is indebted to Plaintiff 6 as alleged, and that Plaintiff's rights against such fictitiously named Defendants arises from such 7 indebtedness. 8 FIRST CAUSE OF ACTION 9 BREACH OF CONTRACT 10 (As Against Defendant Paramount; and Does 1 through 25, inclusive.) lanak&hanna 11 5. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its 12 allegations contained in Paragraphs 1 through 4 herein. 13 6. Plaintiff and Defendants Paramount; and Does 1 through 25, inclusive entered into a 14 written agreement under which Plaintiff would sell fencing and fencing related products to Paramount; 15 and Does 1 through 25, inclusive on credit and that Paramount; and Does 1 through 25, inclusive would 16 pay Plaintiff for the fencing and related materials. The terms of the written agreement are provided on 17 the invoices and the online terms and conditions of Plaintiff at www.merchantsmetals.com. Payment on 18 each invoice is due within 30 days from the date of the invoice. A true and correct copy of the written 19 terms and conditions are attached hereto as Exhibit 1. 20 7. Plaintiff performed all its requirements under the terms of the agreement, including 21 selling fencing and related materials to Paramount; and Does 1 through 25, inclusive on credit. 22 10. Paramount; and Does 1 through 25, inclusive have breached the agreement by failing to 23 pay the sum of $166,477.05 for fencing and related materials purchased by Paramount; and Does 1 24 through 25, inclusive from Plaintiff on credit pursuant to the terms of the agreement. 25 11. By reason of the foregoing and of the failure and refusal of Paramount; and Does 1 26 through 25, inclusive to pay for the fencing and related materials provided by Plaintiff, Plaintiff has been 27 damaged in the principal sum of $166,477.05, plus interest from the date each outstanding invoice was 28 due until paid and costs of suit. {2267 29337} 2 COMPLAINT 1 SECOND CAUSE OF ACTION 2 GOODS SOLD AND DELIVERED/AGREED PRICE 3 (As Against Defendant Paramount; and Does 1 through 25, inclusive.) 4 12. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its 5 allegations contained in Paragraphs 1 through 4 herein. 6 13. Within the last four years Paramount; and Does 1 through 25, inclusive became indebted 7 to Plaintiff in the agreed principal sum of $166,477.05 for fencing and related construction materials 8 sold and delivered to Paramount; and Does 1 through 25, inclusive by Plaintiff, and Paramount; and 9 Does 1 through 25, inclusive then and there agreed to pay the agreed amount. 10 14. The full sum amount has not been paid, although demand therefore has been made, and lanak&hanna 11 there is now due, owing and unpaid from Paramount; and Does 1 through 25, inclusive to Plaintiff in the 12 principal sum of $166,477.05, plus interest at the legal rate from the date the invoice became due, until 13 paid and costs of suit. 14 THIRD CAUSE OF ACTION 15 OPEN BOOK ACCOUNT 16 (As Against Defendant Paramount; and Does 1 through 25, inclusive.) 17 15. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its 18 allegations contained in Paragraphs 1 through 4 herein. 19 16. Within the last four years Paramount; and Does 1 through 25, inclusive became indebted 20 to Plaintiff on an open-book account for money due in the principal sum of $166,477.05 for fencing and 21 related material provided by Plaintiff to Paramount; and Does 1 through 25, inclusive, and at Paramount; 22 and Does 1 through 25, inclusive’ s special instance and request, and Paramount; and Does 1 through 25, 23 inclusive agreed to pay the above sum. 24 17. Neither the whole nor any part of the above sum has been paid, although demand 25 therefore has been made, and there is now due, owing and unpaid, the principal sum of $166,477.05, 26 plus interest at the legal rate from the date the invoice became due until paid, plus statutory attorney’s 27 fees and costs of suit. 28 /// {2267 29337} 3 COMPLAINT 1 FOURTH CAUSE OF ACTION 2 ACCOUNT STATED 3 (As Against Defendant Paramount; and Does 1 through 25, inclusive.) 4 18. Plaintiff refers to and incorporates herein by reference, as though fully set forth below, its 5 allegations contained in Paragraphs 1 through 4 herein. 6 19. Within the last four years an account was stated in writing by and between Plaintiff and 7 Paramount; and Does 1 through 25, inclusive wherein it was agreed that Paramount; and Does 1 through 8 25, inclusive was indebted to Plaintiff in the principal sum of $166,477.05. 9 20. Neither the whole nor any part of the above sum has been paid, although demand 10 therefore has been made, and there is now due, owing and unpaid the principal sum of $166,477.05, lanak&hanna 11 together with interest at the legal rate from the date the invoice became due, until paid and costs of suit. 12 WHEREFORE, Plaintiff prays for judgment against the Defendants, as follows: 13 AS TO THE FIRST, SECOND, THIRD AND FOURTH CAUSE OF ACTION: 14 1. For judgment against Paramount Fence Builders, Inc., a California corporation; and Does 15 1 through 25, inclusive, for the principal sum of $166,477.05, plus interest at the maximum legal rate 16 from the date the unpaid invoices became past due, until paid, plus statutory attorney fees as allowed 17 and costs. 18 AS TO ALL CAUSES OF ACTION: 19 2. For costs of suit herein incurred; 20 3. For such other and further relief as the Court deems just and proper. 21 22 Dated: January 4, 2023 LANAK & HANNA, P.C. r 23 l 24 By: ____________________________ MICHAEL K. MURRAY 25 Attorney for Plaintiff, MERCHANTS METALS, LLC. 26 27 28 {2267 29337} 4 COMPLAINT EXHIBIT 1 Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/ ARCHITECTS & SPECIFIERS CONTRACTORS HOME & BUSINESS OWNERS ·- ·- I FE-FENCE ESTIMATOR ABOUT AE PRODUCTS SPECIFICATIONS RESOURCES CONTACT US Terms & Conditions 1 of 5 1/4/2023, 2:47 PM Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/ TERMS & CONDITIONS OF QUOTATION 1. QUOTATION: A quotation from Merchants Metals, LLC (hereafter referred to as “MM”) is valid for 30 days fro ·- ·- be accepted by the buyer (“Buyer”) by submitting to MM before the end of the 30 day period a purchase orde “Purchase Order”). In the event Buyer attempts to accept a Quotation after the 30 day period, MM will review discretion, accept the Quotation as presented, reject it, or make a counterproposal. Quotations are based on provided by Buyer. MM may re-quote a job at time of submission of a Purchase Order from Buyer if the spec included in the Purchase Order differ from the information used for purposes of the original Quotation. 2. CONTRACT AND ACCEPTANCE: (a) All sales of goods (“Ordered Products”) by MM to Buyer shall be subj terms and conditions (the “Terms and Conditions”), which form an integral part of any Purchase Order placed agree in writing, (i) the offer of MM to sell Ordered Products as set forth in the Quotation is expressly conditio Terms and Conditions without any additional or different terms, conditions or warranties, and Buyer’s accepta a Purchase Order with respect thereto shall be deemed to be Buyer’s assent to these Terms and Conditions conditions or warranties contained in any Purchase Order, confirmation or other communication delivered by not be binding on MM, and the accepted Quotation, together with these Terms and Conditions and any applic and exhibits attached by MM to the Quotation (collectively, the “Agreement”), shall constitute the entire agree subject matter thereof. (b) No cancellation of a Purchase Order, change to Ordered Products set forth on a Purchase Order previo obligations of MM hereunder shall be effective without the prior written consent of MM, which consent may discretion. In the event that Buyer wishes to cancel any Purchase Order, MM reserves the right, as a cond to charge a cancellation fee and or restocking fee for costs incurred as determined by MM in its reasonable without limitation, special ordered materials and other specialty items. 3. TITLE AND DELIVERY: All shipments of goods shall be delivered F.O.B. MM’s plant, and title and liability for loss or damage theret delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any othe clearance required at port of entry and destination. Shipping dates are approximate only. MM shall not be liable for any loss or expense, whether by way of co otherwise) incurred by Buyer if MM fails to meet the specified estimated delivery schedule because of unav provisions of Paragraph 3 apply to both domestic and international shipments, except that title to goods sh point of destination; risk of loss or damage and all expenses associated with goods shipped outside the U. Buyer. 4. PURCHASE PRICE: (a) For each Ordered Product, Buyer shall pay MM all fees designated in the Quotation (as they may be m which designated fees may include, without limitation, costs appropriate to manufacture the Ordered Produ (collectively, the “Purchase Price”). Terms are C.O.D., unless other arrangements are made in writing with Once credit has been established on terms mutually agreeable to the parties, these accounts are subject t Department of the seller. And if in its sale discretion the financial position of the Buyer has changed prior to may refuse to complete same or to make delivery of any further work or materials pending modification of t agree that such action on the part of the Seller shall not be a cause of incurring any liability for damages ag 2 of 5 1/4/2023, 2:47 PM Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/ (b) If any invoice remains unpaid thirty (30) days after the original invoice date, MM shall be entitled (witho other rights of MM) to charge interest on the unpaid balance from the date due at a rate equal to the lesser ·- ·- rate permitted by applicable law. If any outstanding balance remains unpaid thirty (30) days after the origin limiting any of its other rights and remedies, suspend the manufacturing or delivery of any or all Ordered P by Buyer or its affiliates, and/or alter or suspend any credit previously or thereafter extended to Buyer or its for and shall reimburse MM for all costs and expenses of collection, including, without limitation, reasonabl by Buyer are subject to collection. (c) If Buyer has a dispute regarding any invoice, Buyer must inform MM within ten (10) business days after regarding the nature of the dispute. Buyer shall nonetheless pay the undisputed amount within the otherwi (d) The Purchase Price set forth in the Quotation is exclusive of all taxes, including, without limitation, fede and other taxes, now or hereafter levied or imposed on the sale, delivery or use of Ordered Products, and pay all such taxes, regardless of whether included on any invoice. 5. ACCEPTANCE OF ORDERED PRODUCTS: Buyer shall inspect and accept or reject the Ordered Products have ten (10) business days thereafter to give written notice to MM of any claim that the Ordered Products a conform to the agreed upon terms or contain material defects. If Buyer fails to give such notice, the Ordered to the Purchase Order and Buyer shall be deemed to have accepted the Ordered Products. Buyer’s sole rem Products that are of insufficient quantity shall be for MM to deliver the undelivered quantity of Ordered Produ respect to any defective Ordered Product shall be the replacement of the defective Ordered Product by MM. 6. DISCLAIMER; LIMITATIONS OF LIABILITY: (a) EACH ORDERED PRODUCT IS PROVIDED ON AN “AS IS” BASIS. MM DOES NOT MAKE ANY REP EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT, AND MM IMPLIED WARRANTY WITH RESPECT TO EACH ORDERED PRODUCT, INCLUDING, BUT NOT LIMIT QUALITY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNES OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER MM NOR AN ANY OTHER OBLIGATION OR RESPONSIBILITY WITH RESPECT TO THE ORDERED PRODUCTS, AN AFFILIATES HAS AUTHORIZED ANY PERSON TO ASSUME ANY OTHER OBLIGATION OR RESPONS (b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, IN NO EVENT SHALL OTHER PERSON FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMP LOSS OF USE, LOSS OF TIME, INCONVENIENCE, OR LOSS OF PROFIT DAMAGES OF ANY KIND O OUT OF OR RELATING TO THE AGREEMENT OR ANY ORDERED PRODUCT, EVEN IF MM IS ADVISE DAMAGES, AND REGARDLESS OF WHETHER THE FOREGOING DAMAGES ARE BASED ON DEFEC NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OR OTHER TORT, WARRANTY, CONTRACT, INDE STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AG LIABILITY, IF ANY, OF MM AND ITS OFFICERS AND EMPLOYEES FOR ALL DIRECT DAMAGES RESU PRODUCT AND MM’s OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL P RESPECT TO THE APPLICABLE ORDERED PRODUCT. 7. INDEMNITY: Buyer shall indemnify, defend and hold harmless MM and its affiliates, officers, directors, emplo (collectively, the “MM Indemnified Parties”), from and against any and all third party claims, and all costs, dam (including reasonable attorneys’ fees and costs) incurred in connection with such third party claims (collectiv resulting from or relating to (a) MM’s production of any Ordered Product in conformity with Buyer’s specificat 3 of 5 1/4/2023, 2:47 PM Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/ Product. By way of example and not limitation, Claims for which Buyer may be obligated to indemnify a MM provision include, without limitation, third party claims (i) for death, personal injury, damage to property or da ·- ·- Ordered Product violates any applicable law, or (iii) that the Ordered Product infringes on any intellectual pro without limitation, any patent, copyright, trademark, trade secret or other intellectual property right). If Buyer f Party as required by this Agreement, then Buyer shall pay for any damages (including reasonable attorneys’ and costs incurred by the MM Indemnified Party in the prosecution of any action to enforce the terms of this A thereof. 8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION: All proprietary designs, drawings, and other inform other party and identified as “Confidential,” “Proprietary,” or with words of like import shall be received by the and, to the extent such information is the property of the disclosing party when disclosed to the receiving par disclosing party. The foregoing restrictions shall not apply to (a) information within the legitimate possession obligation of nondisclosure before receipt of the information from the disclosing party (or an affiliate of the dis the time of disclosure by the disclosing party, then in the public domain or thereafter comes into the public do party; (c) information that is obtained by the receiving party from a third party with legitimate possession ther such disclosure; or (d) information ordered to be disclosed by a court of competent jurisdiction or other gover authority, provided the receiving party first notifies the disclosing party in writing as soon as reasonably poss information, and reasonably cooperates with the disclosing party if the disclosing party elects to contest and/ obtain confidential treatment of the information to be disclosed. 9. MISCELLANEOUS: (a) Independent Contractors. The relationship of the parties hereunder is that of indepe one hand, nor Buyer on the other hand, shall have any power to bind the other or to create any obligation on represent that it has any such power. (b) Promotional Matters. MM may issue press releases and other marketing and promotional material desc Agreement, including, without limitation, displaying the Ordered Products provided to Buyer as examples o MM. In addition, in connection with the production of the Ordered Products hereunder, Buyer hereby grants any advertising and publicity materials of MM identifying Buyer as a customer of MM. (c) Governing Law; Dispute Resolution. The Agreement shall be governed by, and construed in accordanc Georgia without giving effect to any choice or conflict of laws provision or rule that would cause the applica than Fulton County, Georgia. The United Nations Convention on Contracts for the International Sale of Go purchase of Ordered Products. MM, in its sole discretion, may elect to sue Buyer in the jurisdiction coverin in any jurisdiction in which any assets of Buyer may be found, and in the event an action is brought by a th Party for which the MM Indemnified Party may be entitled to indemnification under the Agreement, the MM discretion, bring a claim for indemnity against Buyer in the forum in which the original action is pending. EA WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHET OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. (d) Force Majeure. MM shall not be deemed to be in default or in breach of the Agreement, or otherwise lia way, for any interruption, disruption, delay or failure in the performance of its obligations under the Agreem any cause or circumstance beyond its reasonable control, including, but not limited to, acts of God, war or embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, del equipment or facilities, or shortages of fuel or materials (each, a “Force Majeure Event”); provided, a Force party from its obligation to pay any monies owed to the other party under the Agreement. (e) Severability; Waiver If any term or condition hereof is held to be invalid or unenforceable the remaining 4 of 5 1/4/2023, 2:47 PM Merchants Metals | Terms & Conditions https://www.merchantsmetals.com/terms-conditions-of-quotation/ (e) Severability; Waiver. If any term or condition hereof is held to be invalid or unenforceable, the remaining remain in full force and effect and shall be enforceable to the maximum extent permitted by law. The failure provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the righ ·- ·- (f) Survival of Provisions. The following provisions shall survive the termination of this Agreement for any re (Disclaimer; Limitation of Liability), 7 (Indemnity), 8 (Nondisclosure of Confidential Information) and 9 (Misc (g) Amendment; Assignment. This Agreement may not be amended or otherwise modified except by a writ not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other pe written consent of MM. (h) Third Party Beneficiaries. The Agreement is not intended to benefit any third party and the parties do no not be deemed to create, any third party beneficiary rights hereunder; provided, however, that notwithstand Parties are intended third party beneficiaries of the Agreement. (i) Entire Agreement. The Agreement constitutes the entire agreement and understanding of the parties wi and supersedes any and all prior agreements and understandings with respect thereto. END OF TERMS AND CONDITIONS ABOUT PRODUCTS RESOURCES Who We Are Guardsman EverGuard Locations Join Our Team Secure-Weld Secure-Trac Contact Form MIT Program Secure-Weld Plus Tuf-Guard Product Brochures News Titan Custom Aluminized Chain Link Product Warranties Tuf-Grid Architectural Color Coated Chain Specifications Versai Link Warranty Registration V2 Galvanized Chain Link Fe-Fence Estimator Vintage Square Premium Pre-Slatted Chain Link Terms & Conditions Wood Fencing Copyright 2018 Merchants Metals. Web Design By OWDT 5 of 5 1/4/2023, 2:47 PM