Terms & Conditions

DECRESCENTE DISTRIBUTING COMPANY, INC.
RETAIL CUSTOMER ACCOUNT EQUIPMENT RENTAL
AGREEMENT, INDEMNIFICATION AND GENERAL RELEASE

This Agreement, Indemnification and General Release (the “Agreement”) is made and entered into by and between DeCrescente Distributing Company, Inc. (“DeCrescente”) and the retail account customer renting Equipment (as hereinafter defined) from DeCrescente (“Customer”) to be effective on the date of delivery of any Equipment covered by this Agreement to Customer.  DeCrescente and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”

Recitals

1. DeCrescente, a licensed beverage wholesaler, as defined to include its affiliates, is the owner of various pieces of equipment that it makes available for rent to its retail account customers, including without limitation, cold plates and CO2 tanks (the “Equipment”); and
2. Customer, as defined to include all its owners, officers, employees, representatives, contractors, agents and affiliates, wishes to rent the Equipment from DeCrescente for use at its retail account (the “Premises”) pursuant to the terms and conditions set forth in this Agreement; and
3. Customer acknowledges and agrees to the terms and conditions of this Agreement by accepting delivery of the Equipment as confirmed by the stated terms set forth on the corresponding invoice; and
4. The Parties mutually desire to enter into this Agreement and have agreed on terms and upon the covenants, conditions and provisions herein set forth.

In consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, DeCrescente and Customer hereby agree as follows:

Terms and Conditions

Article 1.  Applicability.  This Agreement shall apply and be effective for Equipment Customer rents from DeCrescente upon Customer’s acceptance of the Equipment at its Premises and receipt of the corresponding invoice.

Article 2.  Delivery and Possession.  DeCrescente will deliver the Equipment in good and proper working order to the Premises, and upon delivery, Customer shall be deemed to have accepted possession of the Equipment in “as is” condition. At such time, any obligations of DeCrescente for operation of the Equipment shall cease, and Customer shall accept and assume full responsibility for the management, operation and condition of the Equipment.

Article 3.  Use of the Equipment.  Customer agrees to only use the Equipment for its intended purpose and in accordance with: (i) all applicable laws, rules, regulations, and ordinances, including without limitation, the NYS Alcoholic Beverage Control Law (collectively, the “Laws”); (ii) the terms and conditions of this Agreement and the Delivered Condition Report; and (iii) any additional use or care instructions provided to Customer by DeCrescente.  Customer covenants and agrees that, if applicable, the Equipment will be used to dispense alcoholic beverages only to persons over the age of twenty-one (21) and who are legally qualified to consume alcoholic beverages.

Article 4. DeCrescente Property.  It is understood and agreed that the rental, possession and use of the Equipment shall not alter or be construed to change the character of said Equipment to be other than property wholly owned by DeCrescente.  At no time shall Customer claim any ownership or other rights to the Equipment.

Article 5.  Movement of the Equipment; Attempted Sale.  The Equipment may not be removed from the Premises without the advanced written permission of DeCrescente.  Any unauthorized removal or attempted sale of the Equipment (via electronic, social media or other means) by Customer, or any employee or agent of Customer, shall be considered theft of the Equipment and may be reported to law enforcement by DeCrescente for criminal prosecution.

Article 6.  Maintenance and Service.  DeCrescente will provide all necessary maintenance and service to the Equipment at no additional charge to the Customer unless such maintenance or service are necessitated due to the actions or negligence of Customer.  Customer shall immediately notify DeCrescente regarding any issues involving the operation or maintenance of the Equipment or the need for repair or replacement.  Customer shall not attempt to perform any service or maintenance on the Equipment as only qualified DeCrescente personnel are permitted to service and maintain the Equipment.  In all cases, DeCrescente will provide the required maintenance or service, or deliver a replacement to the Customer.

Article 7.  Right to Repossession. DeCrescente shall, in its sole discretion, have the right to take immediate repossession of the Equipment from the Customer at any time and for any reason, including but not limited to (i) any breach of a term or condition of this Agreement by Customer; (ii) any misuse of, or damage to, the Equipment; or (iii) any violation of the Laws; and (iv) the loss of any license or permit applicable to possession and use of the Equipment.  Such retaking of possession by DeCrescente shall not affect its rights under this Agreement, and Customer agrees to cooperate fully with DeCrescente in retaking possession of the Equipment and to be responsible for any additional costs incurred by DeCrescente in recovering the Equipment.

Article 8.  Risk of Loss and Damage; Loss of Deposit.  The Customer shall exercise all reasonable care to prevent damage to the Equipment.  Except for any normal wear and tear, any damage to the Equipment caused by Customer (or Customer’s employees or guests), or due to Customer’s negligence, misuse or breach of this Agreement, shall result in a forfeit of Customer’s deposit.  Customer assumes the entire risk of loss of and/or damage to the Equipment, and for the lack of cleanliness of the Equipment while in Customer’s possession, and Customer agrees to promptly advise DeCrescente, orally and in writing, in the event of any loss or damage to the Equipment.  The Customer is not permitted under any circumstances to modify or repurpose the Equipment for any reason without the express written consent of DeCrescente.  Customer shall forfeit its deposit as reimbursement to DeCrescente for the costs of repair or replacing any Equipment that has been damaged, lost, modified or repurposed without the consent of DeCrescente.

Article 9.  Customer’s Insurance. Customer agrees at its own expense to procure and to maintain insurance from a highly rated insurance company sufficient to protect DeCrescente and Customer from and against all loss and liability for property damage, bodily injury or death arising out of the use of the Equipment.

Article 10.  Assumption of Risk.  Customer acknowledges and understands that it assumes the risk of any action, use or activity being performed using the Equipment.

Article 11.  Release; Indemnity; Limitation of Liability.  In consideration for DeCrescente’s agreement to permit Customer to rent the Equipment, Customer hereby agrees to the following:

1. IN EXCHANGE FOR THE BENEFITS PROVIDED UNDER THIS AGREEMENT, CUSTOMER HEREBY KNOWINGLY AND VOLUNTARILY FULLY RELEASES AND FOREVER DISCHARGES DECRESCENTE AND ITS PAST, PRESENT AND FUTURE EMPLOYEES, OWNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, PRINCIPALS, AGENTS, ATTORNEYS, REPRESENTATIVES, ASSIGNS, SUBSIDIARIES, AFFILIATES AND DIVISIONS (COLLECTIVELY THE “DECRESCENTE RELEASEES”) FROM ALL AND ALL MANNER OF PAST, PRESENT OR FUTURE CLAIMS, DEMANDS AND ACTIONS IN LAW OR IN EQUITY, IN TORT OR IN CONTRACT, OR UNDER ANY OTHER THEORY OF RECOVERY, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, WHETHER NOW EXISTING OR HEREINAFTER ARISING, WHICH CUSTOMER EVER HAD, NOW HAS OR MAY HAVE HEREAFTER AGAINST DECRESCENTE OR THE DECRESCENTE RELEASEES, ARISING OUT OF OR RELATING IN ANY MANNER TO CUSTOMER’S RENTAL, POSSESSION, USE, AND OPERATION OF THE EQUIPMENT, REGARDLESS OF THE CAUSE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE ON THE PART OF DECRESCENTE OR THE DECRESCENTE RELEASEES.
2. IN FURTHER CONSIDERATION FOR DECRESCENTE’S AGREEMENT TO RENT THE EQUIPMENT, CUSTOMER HEREBY INDEMNIFIES, DEFENDS AND HOLDS HARMLESS DECRESCENTE AND THE DECRESCENTE RELEASEES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, ASSESSMENTS, DAMAGES, LIABILITIES OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES THROUGH ALL PHASES OF LITIGATION), OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO CUSTOMER’S RENTAL, POSSESSION, USE, AND OPERATION OF THE EQUIPMENT.
3. IN NO EVENT SHALL DECRESCENTE OR THE DECRESCENTE RELEASEES BE LIABLE TO CUSTOMER IN CONTRACT, TORT, STRICT LIABILITY, OR ON ANY OTHER BASIS FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING LOST PROFITS OR REVENUES, LOSS OF CUSTOMER GOODWILL, BUSINESS INTERRUPTION COSTS, OVERHEAD COSTS, COSTS OF CAPITAL, OR LOSS OF USE OF MONEY IN ANY WAY ASSOCIATED WITH CUSTOMER’S RENTAL, POSSESSION, USE, OR OPERATION OF THE EQUIPMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH LOSSES OR DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN.  IN NO EVENT SHALL DECRESCENTE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE FEES PAID TO DECRESCENTE UNDER THIS AGREEMENT.

Article 12.  Independent Parties.  Customer’s status hereunder shall always be that of an independent party.  Nothing in this Agreement is intended, nor shall it be construed, to (i) make DeCrescente and Customer partners or joint venturers nor grant a right in or to any business activity or investments of or to the income or proceeds disbursed therefrom, or (ii) create a relationship between DeCrescente and Customer of principal and agent, employer and employee or franchisor and franchisee.  Customer shall not at any time have the authority to bind DeCrescente.

Article 13.  No Assignment.  This Agreement shall not be assignable by Customer without the prior written consent of DeCrescente.

Article 14.  Severability. If any term or provision of this Agreement or its application to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement or its application to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each such remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Article 15.  Waiver.  No waiver by DeCrescente of any of the provisions hereof will be effective unless it is in writing, identified as such waiver, and signed by an authorized representative of DeCrescente. No waiver by DeCrescente shall operate or be construed as a waiver in respect of any subsequent failure, breach, or default, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof on any other occasion, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Article 16.  Governing Law. This Agreement is entered into and shall be governed by and interpreted in accordance with, the laws of the State of New York, without reference to conflicts or choice of law.  Each of the Parties hereby irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of the United States District Court or the applicable state court located in the State of New York, County of Saratoga, for any action or proceeding arising out of or relating to this Agreement, (ii) waives any objection to the laying of venue of any such action or proceeding in such courts, and (iii) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  The prevailing party to any action shall be entitled to attorneys’ fees.

Article 17.  Acknowledgment. Customer certifies that it has read and understands the contents of this Agreement. By signing this Agreement, Customer hereby states that he/she fully understands each term contained herein and that it has had sufficient time to review and understand the Agreement prior to signing it.

Article 18.  Notice. Any statements, communications or notices in connection with this Agreement shall be sent to the attention of Russell Teplitzky, General Manager, DeCrescente Distributing Company, 211 North Main Street, Mechanicville, NY 12118; r.teplitzky@ddcbev.com.

Article 19.  Entire Agreement; Conflict of Terms.  This Agreement, including its Recitals and Schedules, which are incorporated by reference and made a part hereof, contains the entire agreement between the parties regarding this subject matter and may not be modified unless mutually agreed to and set forth in writing.  Should the terms of this Agreement conflict with any other agreement, including without limitation, a service agreement provided by Customer, the Parties agree that the terms of this Agreement shall prevail.

Article 20.  Acceptance and Effective Date.  This Agreement is deemed to be effective upon Customer’s acceptance of the Equipment and invoice at its Premises and Customer hereby acknowledges and agrees to all the terms set forth in this Agreement.  This Agreement cancels and supersedes any previous agreements between DeCrescente and Customer regarding the subject matter.  No change, modification or alteration to this Agreement, or to the relationship evidenced thereby, will be effective unless set forth in writing and signed by the appropriate representatives of both Parties.

DECRESCENTE DISTRIBUTING COMPANY, INC.
RETAIL CUSTOMER ACCOUNT EQUIPMENT RENTAL
AGREEMENT, INDEMNIFICATION AND GENERAL RELEASE

This Agreement, Indemnification and General Release (the “Agreement”) is made and entered into as of the date set forth below by and between DeCrescente Distributing Company, Inc. (“DeCrescente”) and the undersigned retail account customer renting Equipment (as hereinafter defined) from DeCrescente (“Customer”).  DeCrescente and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”

Recitals

1. DeCrescente, a licensed beverage wholesaler, as defined to include its affiliates, is the owner of various pieces of equipment that it makes available for rent to its retail account customers, including without limitation, product coolers, kiosks and bag in the box dispensing systems (the “Equipment”); and
2. Customer, as defined to include all its owners, officers, employees, representatives, contractors, agents and affiliates, wishes to rent the Equipment from DeCrescente for use at its retail account (the “Premises”) pursuant to the terms and conditions set forth in this Agreement; and
3. The Parties mutually desire to enter into this Agreement and have agreed on terms and upon the covenants, conditions and provisions herein set forth.

In consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, DeCrescente and Customer hereby agree as follows:

Terms and Conditions

Article 1.  Applicability.  This Agreement shall apply and be effective for all Equipment Customer rents from DeCrescente.

Article 2.  Delivery and Possession.  DeCrescente will deliver the Equipment in good and proper working order to the Premises, at which time a representative from DeCrescente and Customer will jointly inspect the Equipment.  Upon delivery of the Equipment, Customer agrees that DeCrescente may in its sole discretion use, and require Customer to acknowledge and sign, a “Delivered Condition Report”  as set forth in Schedule A attached hereto to record and confirm (i) the specific identification including serial numbers; (ii) the lease term; (iii) the condition; (iv) rental costs; (v) deposit amount; and (vi) replacement value of any delivered Equipment.  Upon execution satisfactory to DeCrescente, Customer shall be deemed to have accepted possession of the Equipment in “as is” condition and any obligations of DeCrescente for operation of the Equipment shall cease, and Customer shall accept and assume full responsibility for the management, operation and condition of the Equipment.  Upon DeCrescente retaking possession of the Equipment at the conclusion of the lease term, Customer and a DeCrescente representative shall inspect the Equipment and agree to execute a “Returned Condition Report” as set forth in Schedule B attached hereto to record and confirm the identification and condition of the Equipment being returned.  DeCrescente may include photographs of the Equipment upon delivery and return.

Article 3.  Use of the Equipment.  Customer agrees to only use the Equipment for its intended purpose and in accordance with: (i) all applicable laws, rules, regulations, and ordinances, including without limitation, the NYS Alcoholic Beverage Control Law (collectively, the “Laws”); (ii) the terms and conditions of this Agreement; and (iii) any additional use or care instructions provided to Customer by DeCrescente.  Customer covenants and agrees that, if applicable, the Equipment will be used to dispense alcoholic beverages only to persons over the age of twenty-one (21) and who are legally qualified to consume alcoholic beverages.  Customer also agrees that only products sold by DeCrescente may be stored, displayed or served using the Equipment.

Article 4. DeCrescente Property.  It is understood and agreed that the rental, possession and use of the Equipment shall not alter or be construed to change the character of said Equipment to be other than property wholly owned by DeCrescente.  At no time shall Customer claim any ownership or other rights to the Equipment.

Article 5.  Movement of the Equipment; Attempted Sale.  The Equipment may not be removed from the Premises without the advanced written permission of DeCrescente.  Any unauthorized removal or attempted sale of the Equipment (via electronic, social media or other means) by Customer, or any employee or agent of Customer, shall be considered theft of the Equipment and may be reported to law enforcement by DeCrescente for criminal prosecution.

Article 6.  Maintenance and Service.  DeCrescente will provide all necessary maintenance and service to the Equipment or will replace the Equipment, both at no additional charge to the Customer, unless such maintenance or service are necessitated due to the actions or negligence of Customer.  Customer shall immediately notify DeCrescente regarding any issues involving the operation or maintenance of the Equipment or the need for repair.  Customer shall not attempt to perform any service or maintenance on the Equipment as only qualified DeCrescente personnel are permitted to service and maintain the Equipment.

Article 7.  Right to Repossession. DeCrescente shall, in its sole discretion, have the right to take immediate repossession of the Equipment from the Customer at any time and for any reason, including but not limited to (i) any breach of a term or condition of this Agreement by Customer; (ii) any misuse of, or damage to, the Equipment; or (iii) any violation of the Laws; and (iv) the loss of any license or permit applicable to possession and use of the Equipment.  Such retaking of possession by DeCrescente shall not affect its rights under this Agreement, and Customer agrees to cooperate fully with DeCrescente in retaking possession of the Equipment and to be responsible for any additional costs incurred by DeCrescente in recovering the Equipment.

Article 8.  Risk of Loss and Damage; Loss of Deposit.  The Customer shall exercise all reasonable care to prevent damage to the Equipment.  Except for any normal wear and tear, any damage to the Equipment caused by Customer (or Customer’s employees or guests), or due to Customer’s negligence, misuse or breach of this Agreement, shall result in a forfeit of Customer’s deposit and/or an additional charge to Customer for the cost of repair or replacement.  Customer assumes the entire risk of loss of and/or damage to the Equipment, and for the lack of cleanliness of the Equipment while in Customer’s possession, and Customer agrees to promptly advise DeCrescente, orally and in writing, in the event of any loss or damage to the Equipment.  The Customer is not permitted under any circumstances to modify or repurpose the Equipment for any reason without the express written consent of DeCrescente.  Except for normal wear and tear, Customer shall forfeit its deposit and/or be charged an additional amount to reimburse DeCrescente for the costs of repair or replacing any Equipment that has been damaged, lost, modified or repurposed without the consent of DeCrescente.

Article 9.  Collection Costs.  If Customer fails to pay DeCrescente for the cost of any Equipment repair or replacement, DeCrescente may seek a money judgment against Customer for the entire balance due.  In this event, Customer shall reimburse DeCrescente for any additional expenses DeCrescente incurs in seeking such judgment or in otherwise enforcing this Agreement, including but not limited to, all DeCrescente’s collection costs and attorneys’ fees.

Article 10.  Customer’s Insurance. Customer agrees at its own expense to procure and to maintain insurance from a highly rated insurance company sufficient to protect DeCrescente and Customer from and against all loss and liability for property damage, bodily injury or death arising out of the use of the Equipment, with a limit of at least one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate.

Article 11.  Assumption of Risk.  Customer acknowledges and understands that it assumes the risk of any action or activity being performed using the Equipment.

Article 12.  Release; Indemnity; Limitation of Liability.  In consideration for DeCrescente’s agreement to permit Customer to rent the Equipment, Customer hereby agrees to the following:

1. IN EXCHANGE FOR THE BENEFITS PROVIDED UNDER THIS AGREEMENT, CUSTOMER HEREBY KNOWINGLY AND VOLUNTARILY FULLY RELEASES AND FOREVER DISCHARGES DECRESCENTE AND ITS PAST, PRESENT AND FUTURE EMPLOYEES, OWNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, PRINCIPALS, AGENTS, ATTORNEYS, REPRESENTATIVES, ASSIGNS, SUBSIDIARIES, AFFILIATES AND DIVISIONS (COLLECTIVELY THE “DECRESCENTE RELEASEES”) FROM ALL AND ALL MANNER OF PAST, PRESENT OR FUTURE CLAIMS, DEMANDS AND ACTIONS IN LAW OR IN EQUITY, IN TORT OR IN CONTRACT, OR UNDER ANY OTHER THEORY OF RECOVERY, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, WHETHER NOW EXISTING OR HEREINAFTER ARISING, WHICH CUSTOMER EVER HAD, NOW HAS OR MAY HAVE HEREAFTER AGAINST DECRESCENTE OR THE DECRESCENTE RELEASEES, ARISING OUT OF OR RELATING IN ANY MANNER TO CUSTOMER’S RENTAL, POSSESSION, USE, AND OPERATION OF THE EQUIPMENT, REGARDLESS OF THE CAUSE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE ON THE PART OF DECRESCENTE OR THE DECRESCENTE RELEASEES.
2. IN FURTHER CONSIDERATION FOR DECRESCENTE’S AGREEMENT TO RENT THE EQUIPMENT, CUSTOMER HEREBY INDEMNIFIES, DEFENDS AND HOLDS HARMLESS DECRESCENTE AND THE DECRESCENTE RELEASEES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, ASSESSMENTS, DAMAGES, LIABILITIES OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES THROUGH ALL PHASES OF LITIGATION), OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO CUSTOMER’S RENTAL, POSSESSION, USE, AND OPERATION OF THE EQUIPMENT.
3. IN NO EVENT SHALL DECRESCENTE OR THE DECRESCENTE RELEASEES BE LIABLE TO CUSTOMER IN CONTRACT, TORT, STRICT LIABILITY, OR ON ANY OTHER BASIS FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING LOST PROFITS OR REVENUES, LOSS OF CUSTOMER GOODWILL, BUSINESS INTERRUPTION COSTS, OVERHEAD COSTS, COSTS OF CAPITAL, OR LOSS OF USE OF MONEY IN ANY WAY ASSOCIATED WITH CUSTOMER’S RENTAL, POSSESSION, USE, OR OPERATION OF THE EQUIPMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH LOSSES OR DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN.  IN NO EVENT SHALL DECRESCENTE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE FEES PAID TO DECRESCENTE UNDER THIS AGREEMENT.

Article 13.  Independent Parties.  Customer’s status hereunder shall always be that of an independent party.  Nothing in this Agreement is intended, nor shall it be construed, to (i) make DeCrescente and Customer partners or joint venturers nor grant a right in or to any business activity or investments of or to the income or proceeds disbursed therefrom, or (ii) create a relationship between DeCrescente and Customer of principal and agent, employer and employee or franchisor and franchisee.  Customer shall not at any time have the authority to bind DeCrescente.

Article 14.  No Assignment.  This Agreement shall not be assignable by Customer without the prior written consent of DeCrescente.

Article 15.  Severability. If any term or provision of this Agreement or its application to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement or its application to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each such remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Article 16.  Waiver.  No waiver by DeCrescente of any of the provisions hereof will be effective unless it is in writing, identified as such waiver, and signed by an authorized representative of DeCrescente. No waiver by DeCrescente shall operate or be construed as a waiver in respect of any subsequent failure, breach, or default, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof on any other occasion, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Article 17.  Governing Law. This Agreement is entered into and shall be governed by and interpreted in accordance with, the laws of the State of New York, without reference to conflicts or choice of law.  Each of the Parties hereby irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of the United States District Court or the applicable state court located in the State of New York, County of Saratoga, for any action or proceeding arising out of or relating to this Agreement, (ii) waives any objection to the laying of venue of any such action or proceeding in such courts, and (iii) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  The prevailing party to any action shall be entitled to attorneys’ fees.

Article 18.  Acknowledgment. Customer certifies that it has read and understands the contents of this Agreement. By signing this Agreement, Customer hereby states that he/she fully understands each term contained herein and that it has had sufficient time to review and understand the Agreement prior to signing it.

Article 19.  Notice. Any statements, communications or notices in connection with this Agreement shall be sent to the attention of Russell Teplitzky, General Manager, DeCrescente Distributing Company, 211 North Main Street, Mechanicville, NY 12118; r.teplitzky@ddcbev.com.

Article 20.  Entire Agreement; Conflict of Terms.  This Agreement, including its Recitals and Schedules, which are incorporated by reference and made a part hereof, contains the entire agreement between the parties regarding this subject matter and may not be modified unless mutually agreed to and set forth in writing.  Should the terms of this Agreement conflict with any other agreement, including without limitation, a service agreement provided by Customer, the Parties agree that the terms of this Agreement shall prevail.

Article 21.  Execution and Authority.  This Agreement may be executed in two or more counterparts and electronically delivered signatures of the Parties shall be deemed to constitute original signatures.  Each Party has caused this Agreement to be executed by its proper and duly authorized officer or representative, and designating acceptance below the Customer hereby acknowledges and agrees to all the terms set forth in this Agreement.  This Agreement cancels and supersedes any previous agreements between DeCrescente and Customer regarding the subject matter.  No change, modification or alteration to this Agreement, or to the relationship evidenced thereby, will be effective unless set forth in writing and signed by the appropriate representatives of both Parties.