Reference no: EM131473798
Question: In August 1995, Carl Merritt contacted RxP Prods., Inc. ("RxP") about selling "RxP Gas Kicker," a fuel additive, as a private-label product. The parties entered into an agreement, which stated, in its entirety: This agreement is made on this 28th day of September, 1995, between RxP Products, Inc., hereafter referred to as RxP, and Merritt-Campbell, Incorporated, hereinafter referred to as Merritt-Campbell. In consideration of the sum of ten dollars ($10.00), the receipt of which is acknowledged, RxP agrees to sell to Merritt-Campbell the product marketed as "RxP Gas Kicker" under the following terms:
1. RxP guarantees the following price to MerrittCampbell for a period of five (5) years from the date of first order.
a. RxP Gas Kicker bottled in 2.5 ounce quantities-$1.25 per bottle (excluding labels).
b. RxP Gas Kicker in 55 gallon drum quantity -$1,280,00 (sic) per drum. Said pricing may be increased only in the case of documented price increases to RxP for raw materials.
2. RxP will bottle RxP Gas Kicker in either green or black bottles, as provided as samples, upon request for Merritt-Campbell.
3. RxP guarantees shipment within fourteen (14) days from receipt of order from MerrittCampbell.
4. Both RxP and Merritt-Campbell agree unconditionally to maintain confidentiality regarding the relationship between the two companies. This confidentiality includes, but is not limited to, any disclosure of the source product market by RxP and Merritt-Campbell. The scope of this confidentiality includes, but is not limited to, any director, officer, employee, or agent of both RxP and Merritt-Campbell.
5. It is understood by RxP that it is the intention of Merritt-Campbell to market the product heretofore referred to as "RxP Gas Kicker" under a private label. A dispute arose between the two parties. MerrittCampbell filed suit against RxP alleging that RxP had breached a requirements contract entered into by the parties. Merritt-Campbell sought specific performance as a remedy. RxP responded that the contract did not satisfy the UCC Statute of Frauds because it failed to state a quantity term. Who is correct?
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