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how would you suggest we proceed? Our goal is to set a payment plan and repay every penny, but not be filleted if we are late on a payment or two.
Terms on PO and invoice say Net 30. From their boilerplate on their invoice (our PO has no detailed terms) which we didn't sign: "Purchaser shall defend, indemnify and hold XXX harmless of from and against any and all loss. damage, liability and expense including court costs and reasonable attorney’s fees, arising out or any breach by Purchaser or the terms and conditions of this Purchase Order."
We aren't trying to stiff them, just continue to pay on our timetable without meeting their request:
Do you want to make a proposal to pay off the amount owing, with perhaps a Stipulation For Entry of Judgment Upon Default in Payment Schedule? The idea would be that no judgment would be entered unless and until YYY were to default in an agreed-upon payment schedule.
Of further interest is that they filed in California; their invoice terms say:
CHOICE OF LAW: This Purchase Order shall be construed and enforced pur suant to the laws and decisions of the State of ZZZ, as such laws and decisions relate to agreements entered into and to be fully performed therein.
JURISDICTION: Venue over any dispute arising under or in connection with this Purchase Order shall reside cxclusively in the state and federal courts located in the State of ZZZ, and Purchaser and XXX consent to the personal jurisdiction of such courts. The parties each waive any objection based on forum non convcnicns and waive anv objection to venue of any action instituted hereunder.
Filed in Santa Clara County, California. Our agent of service received a registered letter. The agent said, "We received the Summons and Complaint by mail yesterday, presumably because we are agent for service of process. We did not receive personal service."
all in Santa Clara County
Not that expensive in reality - $5K maybe? They only have to show:
1) that they supplied you with products and services at a certain cost and payments were to be made pursuant to the invoice or agreement
2) that you defaulted and didn't make those payments
3) show their damages or amount owed
Your defense is that the product or services were somehow defective or that the contract provided for a payment plan or something.
You would only be liable for their legal fees IF the contract provides for the recovery of legal fees to the prevailing party and if they have to pursue the matter. Most contracts provide for such (the recovery of attorney's fees and litigation costs but I don't know what your contract provides).
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