I. COPYRIGHT AND TRADEMARKS
This Site and the materials within it are © 1999 A. Stucki Company. A. Stucki Company, Stucki.com, Stucki are all service marks of A. Stucki Company. All rights reserved. These and other stucki.com graphics, logos and service marks and trademarks of A. Stucki Company may not be used without prior written consent of A. Stucki company, as the case may be. All other trademarks, product names, and company names and logos appearing on stucki.com are the property of their respective owners.
II. DISCLAIMERS AND LIMITATION OF LIABILITY
User expressly agrees that use of stucki.com is at User’s sole risk. Neither stucki.com, nor its affiliates, nor any of their officers, directors, or employees, agents, third-party content providers, merchants, sponsors, licensors (collectively, “Providers”), or the like, warrant that stucki.com will be uninterrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of stucki.com, or as to the accuracy, reliability, or currency of any information content, service, or merchandise provided through stucki.com.
THIS SITE IS PROVIDED BY STUCKI.COM ON AN “AS IS”AND “AS AVAILABLE” BASIS. STUCKI.COM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS, INCLUDED ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, STUCKI.COM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. STUCKI.COM WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL PUNITIVE AND CONSEQUENTIAL DAMAGES. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY STUCKI.COM NOR ITS AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE.
Under no circumstances shall stucki.com or any other party involved in creating, producing, or distributing stucki.com be liable for any direct, indirect, incidental, special, or consequential damages that result from the use of or inability to use stucki.com, including but not limited to reliance by a User on any information obtained from stucki.com or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of God, communications failure, theft, destruction, or unauthorized access to stucki.com’s records, programs, or services. User hereby acknowledges that this paragraph shall apply to all content, merchandise, and services available through stucki.com. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states liability is limited to the fullest extent permitted by law.
a. PROPRIETARY RIGHTS
User acknowledges that stucki.com contains information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material (collectively “Content”) that are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is copyrighted as a collective work under the U.S. copyright laws, and stucki.com owns a copyright in the selection, coordination, arrangement, and enhancement of such Content. User may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part. If no specific restrictions are displayed, Users may make copies of select portions of the Content, provided that the copies are made only for User’s personal use and that User maintains any notices contained in the Content, such as all copyright notices, trademark legends, or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the U.S. copyright laws (see,e.g., 17 U.S.C. Section 107), User may not upload, post, reproduce, or distribute in any way Content protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other propriety right. In addition to the foregoing, use of any software Content shall be governed by the software license agreement accompanying such software.
b. DISTRIBUTION/UPLOADING OF THIRD-PARTY CONTENT
Except as set forth in Section III a. above, User may upload to or otherwise distribute on stucki.com only Content that is not subject to any copyright or other proprietary rights protection (collectively, “Public Content”), or Content in which the author has given express authorization for distribution on the World Wide Web. Any copyrighted or other proprietary Content distributed with the consent of a copyright owner should contain a phrase such as “Copyright, owned by [name of owner]; used by permission.” The unauthorized submission or distribution of copyrighted or other proprietary Content is illegal and could subject the User to criminal prosecution as well as personal liability for damages in a civil suit. User will be liable for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from such submission. Neither stucki.com, nor its affiliates, nor any of their officers, directors, employees, agents, Providers, or the like, will be liable for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from such User submission. In compliance with the Digital Millennium Copyright Act, Users and other persons can report an infringement to firstname.lastname@example.org. By submitting Content to any User-submit areas, including, without limitation, any User book reviews or participation in any author chats, User automatically grants, or warrants that the owner of such Content has expressly granted stucki.com the royalty-free, perpetual, irrevocable, nonexclusive right and license to use, reproduce, publish, translate, sublicense, copy, and distribute the Content in whole or in part worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such Content. User also permits any other User to access, store, or reproduce the Content for that User’s personal use. Subject to this grant, the owner of Content placed on stucki.com retains any and all rights which may exist in such Content.
c. THIRD-PARTY CONTENT
Stucki.com is a distributor and not a publisher of Content supplied by third parties and users. Stucki.com has no more editorial control over such Content than does a public library or newsstand. Any opinions, advice, statements, services, offers, or other information that constitutes part of Content expressed or made available by third parties, including Providers or any other User of stucki.com, are those of the respective authors or distributors and not of stucki.com or its affiliates or any of their officers, directors, employees, or agents. Neither stucki.com nor its affiliates, nor any of their officers, directors, employees, or agents, nor any third party, including any Provider, or any other User of stucki.com, guarantees the accuracy, completeness, or usefulness of any Content, nor its merchantability or fitness for any particular purpose. In many instances, the Content available through stucki.com represents the opinions and judgments of the respective Provider, or User not under contract with stucki.com. stucki.com neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on stucki.com by anyone other than authorized stucki.com employees. Under no circumstances shall stucki.com, or its affiliates, or any of their officers, directors, employees, or agents be liable for any loss, damage or harm caused by a User’s reliance on information obtained through stucki.com. It is the responsibility of User to evaluate the information, opinion, advice, or other Content available through stucki.com.
The U.S. export control laws regulate the export and reexport of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. User agrees to abide by these laws and their regulations — including but not limited to the Export Administration Act and the Arms Export Control Act and not to transfer, by electronic transmission or otherwise, any Content derived from stucki.com to either a foreign national or a foreign destination in violation of such laws.
IV. ONLINE CONDUCT
User agrees to use stucki.com only for lawful purposes. User is prohibited from posting on or transmitting through stucki.com any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law.
If stucki.com is notified of allegedly infringing, defamatory, damaging, illegal, or offensive Content provided by User, stucki.com may investigate the allegation and determine in its sole discretion whether to remove or request the removal of such Content from stucki.com. Stucki.com may disclose any Content or electronic communication of any kind (i) to satisfy any law, regulation, or government request; (ii) if such disclosure is necessary or appropriate to operate stucki.com; or (iii) to protect the rights or property of stucki.com, its Users or Providers.
Stucki.com reserves the right to prohibit conduct, communication, or Content that it deems in its sole discretion to be harmful to individual Users, stucki.com, the communities that make up stucki.com, or any rights of stucki.com or any third party, or to violate any applicable law. Notwithstanding the foregoing, neither stucki.com nor its Providers can ensure prompt removal of questionable Content after online posting. Accordingly, neither stucki.com, nor its affiliates, nor any of their officers, directors, employees, or agents, nor Providers shall assume liability for any action or inaction with respect to conduct, communication, or Content on stucki.com.
VI. TERMINATION OF USAGE
Stucki.com may terminate User’s access, or suspend any User’s access to all or part of stucki.com, without notice, for any conduct that stucki.com, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another User, a third-party Provider, a service provider, or stucki.com.
VII. APPLICABLE LAW
This site is created and controlled by stucki.com in the State of Pennsylvania. As such, the laws of the State of Pennsylvania will govern these disclaimers, terms and conditions, without giving effect to any principles of conflicts of laws. Stucki.com reserves the right to make changes to its site and these disclaimers, terms and conditions at any time. User hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Pennsylvania and of the United States of America located in the State of Pennsylvania for any litigation arising out of or relating to use of or purchase made through stucki.com (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Pennsylvania Courts and agrees not to plead or claim in any Pennsylvania Court that such litigation brought therein has been brought in an inconvenient forum.
VIII TERMS AND CONDITIONS OF SALE
1) ACCEPTANCE. These terms and conditions constitute the final, complete and entire agreement between A. Stucki Company (“Stucki”) and Buyer and supercede all prior written or oral representations or agreements. Any offer by Stucki to sell, or any acceptance by Stucki of Buyer’s purchase order or other form, is expressly conditioned on Buyer’s acceptance of these terms and conditions. If Buyer’s terms and conditions differ in any way from these terms and conditions, this statement will be effective as notice of objection and a rejection thereof. No modification or waiver of any of these terms or conditions, in whole or in part, will be binding, except in a writing signed by Stucki. In any event, Buyer’s authorization to ship the products or acceptance of the products will be deemed to be Buyer’s assent to these terms and conditions and an agreement shall be formed.
2) WARRANTY. Stucki expressly warrants that the Stucki products sold hereunder will be free from defects in material and workmanship under normal use and maintenance for a period of one year from the date of shipment and that the products will conform to any applicable drawings and specifications approved in writing by Stucki. This warranty applies only to products which have been installed, operated and maintained in accordance with Stucki’s instructions. This warranty does not cover damage due to faulty installation, operation or maintenance of products, accident, abuse, misuse, neglect, or other conditions beyond the control of Stucki. STUCKI DISCLAIMS ALL OTHER WARRANTIES ARISING BY LAW OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3) REMEDY. Buyer’s SOLE AND EXCLUSIVE remedy for a breach of Stucki’s warranty shall be repair or replacement of the defective Stucki product as Stucki in its sole discretion decides. Repair or replacement will be made at no charge provided that (i) Buyer notifies Stucki in writing of any claim and provides Stucki with evidence that the claim being made is covered by the warranty, (ii) at Stucki’s sole option Buyer either receives from Stucki authorization to return the product or gives Stucki reasonable opportunity to inspect the product claimed to be defective, (iii) any defective product returned to Stucki is returned F.O.B. Stucki’s factory, Pittsburgh, Pennsylvania and (iv) it is determined by Stucki that the defect did not arise due to faulty installation, operation or maintenance of products, accident, abuse, misuse, neglect or other conditions beyond the control of Stucki. Unauthorized returns will be returned to Buyer at Buyer’s expense without examination by Stucki. If this remedy of repair or replacement is adjudged to have failed of its essential purpose, Stucki’s total liability shall be to refund the product purchase price paid to Stucki by Buyer for the defective product.
4) LIMITATION OF LIABILITY. Stucki will not be liable for special, indirect, consequential or incidental damages whether arising under contract, warranty, tort, negligence, strict liability or any other theory of liability. Such damages include but are not limited to loss of profits, loss of use of products, and claims of third parties. The total liability of Stucki for any claim arising under this Agreement will be limited to the purchase price of the product giving rise to the liability.
5) BUYER’S OBLIGATIONS. Buyer shall install, operate and maintain the products in accordance with all Stucki supplied instructions.
6) SHIPPING. All prices are F.O.B. Stucki’s factory, Pittsburgh, Pennsylvania. No freight is allowed unless stated in Stucki’s proposal or order acknowledgement. If Stucki’s proposal states that freight is allowed all prices are F.O.B. Stucki’s factory, Pittsburgh, Pennsylvania, with the most economical surface transportation allowed. If the quoted price includes transportation, Stucki reserves the right to designate the common carrier and to ship in the manner it deems most economical. Added costs due to special routing by Buyer are chargeable to Buyer.
7) TITLE AND RISK OF LOSS. Title to all products sold by Stucki pursuant to this Agreement will remain fully in Stucki until Buyer has paid the full purchase price which is due. All risk of loss or damage to products will pass to Buyer upon delivery to the carrier regardless of who pays shipping costs.
8) DELIVERY. Stucki will establish estimated shipping schedules as closely as practicable in accordance with Buyer’s requested delivery dates. However, shipping schedules and delivery dates are estimated only, and Stucki will not be responsible for deviations in meeting shipping schedules or delivery dates nor for any losses or damages to Buyer (or any third person) occasioned by deviations in the performance or the nonperformance of any of Stucki’s obligations under this Agreement or by loss of or damage to the products when caused directly or indirectly by or in any manner arising from any casualty, riot, war, acts of Buyer, strikes or other labor difficulties, shortages of labor, supplies, transportation or facilities, acts of God, or any other cause beyond the commercially reasonable control of Stucki or suppliers or subcontractors of Stucki.
9) SHORTAGE CLAIMS. Any claims for loss, breakage or damage (obvious or concealed) are Buyer’s responsibility and should be made to the carrier. Stucki will render Buyer reasonable assistance in securing satisfactory adjustment of such claims. Any notices of shortages or other errors must be made in writing to Stucki within fifteen (15) days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all claims by Buyer.
10) CANCELLATION POLICY. Stucki in its sole discretion shall have the right to manufacture products sold under this Agreement as far in advance of its estimated shipping schedule as it deems appropriate. If Buyer cancels an accepted order before Stucki orders any materials or incurs any actual costs (including tooling costs) required to fill the order, no cancellation charge will apply. Buyer agrees, however, that Stucki may incur costs and expenses for which Stucki will be reimbursed in a manner set forth as follows: Stucki will be entitled to receive from Buyer as cancellation charges Stucki’s total costs incurred in processing the cancelled order from the order stage to the stage that the order is in at the time Stucki receives notice from Buyer that the order is cancelled. As used herein, the word “cancel” is intended to include, in addition to any express cancellation, any conduct constituting a breach or repudiation of this Agreement.
11) PATENTS. Stucki will indemnify Buyer for all damages or costs resulting from any suit or demand alleging infringement of any United States patent which claims the product sold by Stucki under this Agreement, if Stucki is notified promptly in writing of such suit or demand and given adequate authority, information and assistance for the defense of same; provided, however, that Stucki, at its own option and expense, shall have the right to settle such suit or demand either by procuring for Buyer the right to continue using the product; or by replacing the product with a noninfringing product; or by modifying the product so that it becomes noninfringing; or by removing the alleged infringing product and refunding the purchase price. If products sold hereunder are made to the Buyer’s design or Buyer has modified the design of products, this indemnification provision will not apply, and in such case Buyer agrees to indemnify Stucki against any claims or liability for patent infringement or misappropriation of trade secrets on account of such design or modification. Stucki’s sole responsibility and Buyer’s exclusive remedy for any claim of infringement shall be as set forth in this Section 11.
12) MODIFICATION, RESCISSION AND WAIVER. This Agreement may not be modified or rescinded nor any of its provisions waived unless such modification, rescission or waiver is in writing and signed by Stucki.
13) MISCELLANEOUS. Seller reserves the right to furnish substitutes for materials which cannot be reasonably obtained because of any restrictions, voluntary or compulsorily, established by or in connection with any governmental authority or program. Stucki may, during any periods of shortage due to causes beyond the control of Stucki or its suppliers, prorate its supply of products among all of its Buyers in such manner as may be deemed equitable in the sole judgment of Stucki. Stucki shall not incur any liability to Buyer because of any proration hereunder.
All orders must be accepted by an authorized employee of Stucki.
The rights and duties of the parties and construction and effect of all provisions hereof shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions.
Failure of Stucki to insist in any one or more instances upon the performance of any of the terms and conditions of this Agreement or the failure of Stucki to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such term, condition, or right hereunder and shall not affect Stucki’s right to insist upon strict performance and compliance with regard to any unexecuted portions of this Agreement or future performance of these terms and conditions.