Acme dating co inc
Acme has sole discretion to determine, after examination, whether returned Products are defective, and Acme’s determination shall be binding on Customer. Acme warrants that all delivered Products: (a) shall be free from defects in material and workmanship for a period of ninety (90) days from delivery; and (b) shall materially confirm to the published specifications. In the event of a dispute between the parties with regard to this Agreement which results in litigation, Acme, if the prevailing party, shall have its attorneys’ fees, professionals’ fees, and costs paid by Customer, and such sum may be added to any judgment entered in the litigation. Customer shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written approval of Acme. If one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality, or unenforceability. This Agreement shall be construed and enforced in accordance with the substantive and procedural laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law, and without regard to rules of construction relating to which party drafted this Agreement. No claim or right arising out of a breach of this Agreement by Customer may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Acme. This Agreement constitutes the complete and exclusive statement of the terms of the contract between the parties and the final expression of the terms of such contract, and shall supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written.
Seller shall bear the risk of loss to the Goods until received and accepted by Buyer. Buyer may reject or revoke its acceptance of any Goods which do not strictly conform with Buyer’s specifications and Seller’s obligations under the Order and, in such event, Buyer shall be entitled to exercise all or any of its remedies. Payment of invoices will not be made without required certifications. In addition to the foregoing express warranties, the Goods purchased shall be subject to all warranties arising by operation of law. Buyer may, by written notice to Seller, cancel the Order, or any portion of it, upon the occurrence of any of the following events (“Events of Default”): (a) Seller fails fully to perform any of its obligations under the Order or these terms and conditions as and when due; or (b) Buyer in its reasonable opinion believes that Seller’s ability to perform the Order is in danger or impaired. Seller consents to the exclusive jurisdiction and venue of the Montgomery County Court of Common Pleas of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of these terms and conditions, the collection of any related amounts due or any disputes arising under or with regard to the purchase of the Goods. These terms and conditions shall inure to the benefit of Buyer’s successors and assigns. Customer shall: (i) place a conspicuous sign at or near the Trailer Site stating that the Trailer is the sole and exclusive property of Acme; (ii) not remove, nor permit any employee, agent, contractor, or third party to remove, the Trailer from the Trailer Site without Acme’s prior written consent; (iii) protect the Trailer from damage while on the Trailer Site or in Customer’s possession; (iv) immediately notify Acme of any loss, theft, or destruction of or damage to the Trailer; and (v) keep the Trailer insured against all risks of fire (including extended coverage), theft, and other risks, payable to Acme and Customer as their interests may appear, in an amount sufficient to cover full replacement of the Trailer, but in no event less than One Million Dollars ($1,000,000).Acme shall be named as an additional insured and loss payee on such insurance.Customer has no rights to set off against amounts due Acme for the Products. Acme may, in its sole discretion, revoke any credit extended to Customer and require payment in full prior to Acme’s delivery of Products.Acme may retain possession of any Products until Customer has paid in advance all amounts due to Acme.Buyer may, at any time by written notice, make changes within the general scope of the Order in the drawings, specifications, designs, methods of shipment or packing, quantities of articles to be furnished, place of delivery or delivery schedule(s).
If any such change causes any increase or decrease in the cost of, or the item(s) required for the performance of any part of, the work under this Order, an equitable adjustment shall be made in writing to the price and/or delivery schedule.
This Order and the terms and conditions shall be deemed accepted by Seller upon the earliest to occur of: (i) written or oral acknowledgment by Seller of receipt of the Order with the intent, expressed or implied, that Seller will provide the Goods; (ii) written or oral acknowledgment by Seller that Seller has commenced performance or that Seller intends to ship or deliver the Goods; or (iii) receipt by Buyer of the Goods. Invoices shall be payable within thirty calendar days after receipt, inspection and acceptance of the Goods by Buyer unless a later payment date is provided for in the Order or in Seller’s invoice, in which case the later date shall control.
Discount privileges will apply from the date of receipt, inspection and acceptance of the Goods or the date of receipt of the invoice, whichever date is later. No change shall be undertaken except upon written authorization of Buyer.
Acme shall not be liable for any special, exemplary, indirect, incidental, punitive, or consequential damages, including, without limitation, lost profits, loss of use, loss of income, arising out of this Agreement or the use or possession of the Products, however caused and under any theory of liability, whether based in contract, tort, or otherwise. Customer shall indemnify, defend and hold harmless Acme, its directors, officers, agents, employees, and contractors against any and all losses, expenses (including, without limitation, attorneys’ fees, other professionals’ fees and court costs), costs, damages (including, without limitation, consequential, exemplary and special damages), lost profits, demands, liabilities, suits and claims in connection with or arising, directly or indirectly, out of: (a) a breach of this Agreement by Customer or its employees, agents, or contractors; (b) any act, error or omission, whether negligent or not, of Customer or its employees, agents, or contractors, including, without limitation, personal injury (including, without limitation, death) and property damage; and (c) any disputes with regard to the title or possession of any Products. Upon any of the above events, Acme will have the additional right to extend the time to provide the Products under this Agreement or to cancel any open purchase orders without any resulting liability to Acme. Acme’s acceptance or acquiescence in a course of performance rendered by Customer pursuant to this Agreement shall not be relevant to determine the meaning of this contract even though Acme has knowledge of the nature of the performance and opportunity for objection. The parties acknowledge and agree that the transactions contemplated by this Agreement are commercial transactions and not for personal, family, or household use. Discontinuation of Products; Design and Material Changes.
Notwithstanding anything contained in this Agreement to the contrary, Acme’s liability to Customer for actual direct damages arising out of this Agreement shall not exceed the total amount paid by Customer to Acme in the twelve-month period immediately preceding the event giving rise to the liability. No amendment or modification of this Agreement shall be effective unless in writing and signed by both parties. Acme may at any time discontinue offering or providing any or all of the Products without notice to Customer and without incurring any liability to Customer. The parties expressly waive the right to a trial by jury in any action or proceeding brought relating to this Agreement, the parties preferring that such dispute be resolved through alternative dispute resolution by a judge having jurisdiction with respect to such dispute.
Buyer shall be entitled to exercise any or all of the remedies specified above or each of such remedies in part. Seller assumes the entire responsibility and liability for and agrees to indemnify, defend and hold harmless Buyer, its officers, agents, employees, successors, assigns, customers and users of the Goods from and against any and all losses, expenses (including without limitation, attorneys’ and other professionals’ fees), costs, damages (including consequential and incidental damages), demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by reason of (a) any act, error or omission, whether negligent or not, of Seller or its agents, employees, suppliers, subcontractors or consultants; or (b) any defect, whether latent or patent, in any product of Seller sold to Buyer; or (c) any failure of the Goods to comply with any warranty of Seller or applicable law; or (d) any breach of the Order or these terms and conditions by Seller.