Apex Tire Company ("Apex Tire") is a manufacturer of automobile tires in Detroit, Michigan.Best Repair is an independently owned automobile service center in Paoli, Pennsylvania.In January of 2021, Apex Tire sends a letter to Best Repair offering to sell 1,000 tires to Best Repair at $30 per tire for the amount of $30,000 to be delivered on May 1, 2021.Best Repair has purchased many tires from Apex in the past, but Best Repair is a small shop and never placed such a large order.

Accompanying the letter from Apex Tire is a form contract that requires a signature from the buyer, in this case Best Repair.The document states, "The Buyer, upon signing, waives any and all warranties of merchantability."

The owner of Best Repair reads the contract.He notes that the words waiving merchantability were not included in the prior form contracts from Apex Tire.He subsequently writes his purchase order that states "Buyer only accepts this offer on the condition that Apex Tire agrees to a warranty of merchantability."

Apex Tire does not respond to the Best Repair purchase orderdocument in writing or via a phone call, but subsequently delivers 1,000 tires on May 1, 2020 accompanied by an invoice for $30,000.Best Repair inspects the tires, sees nothing problematic and submits payment.

Best Repair soon discovers upon closer inspection that the 500 tires have defective treads and demands replacement tires. Apex Tire refuses.Best Repair sues for breach of contract.Apex Tire responds with a motion to dismiss the law suit contending there was no warranty of merchantability in the contract, thatit was waived by the terms of the contract and that Apex Tire never agreed to a warranty of merchantability.

Which party prevails in the law suit?Does Best Repair have a basis to support its claim? Why or why not? Does Apex Tire have a defense and should the judge grant Apex Tire's motion to dismiss the law suit? Why or why not?