1. Acceptance.
Sales of services by Growth Rocket Marketing, (collectively hereinafter “Company”) to the customer receiving these Terms and Conditions of Sale (“Customer”) are governed by these Terms and Conditions of Sale (the “Terms and Conditions”). Any written quotation from Company, current Company price list, and these Terms and Conditions shall constitute the entire agreement between Company and Customer, unless Company and Customer have executed a written agreement which includes additional and/or different terms, in which case such written agreement executed by the parties shall prevail over these terms. COMPANY’S ACCEPTANCE OF CUSTOMER’S OFFER TO PURCHASE PRODUCTS OR SERVICES IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THESE TERMS AND CONDITIONS. If these Terms and Conditions are construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Customer’s acceptance of the products shall manifest Customer’s assent to these Terms and Conditions. These Terms and Conditions may not be waived, amended, or modified except by a written instrument signed by both Customer and Company. The word “products” as used herein shall mean all goods sold by Company to Customer.
2. Payment Terms.
Unless otherwise agreed upon in writing, pricing shall be determined by the then-current Company price list at the time of purchase. Payment terms shall be net thirty (30) days from invoice date unless otherwise specified on the invoice. Past due amounts shall accrue interest of one and one half percent (1 1/2%) per month or the highest rate permitted by law, whichever is lower. Any sales, use or other taxes which the Company may be required to pay or collect with respect to the sale, manufacture, delivery, storage, use or shipment of any products or services sold to Customer shall be paid by Customer. Any credit terms offered by Company are available only so long as Customer fulfills all obligations under the terms and conditions herein including, but not limited to, timely payment of invoices within stated terms. Company reserves the right in its sole judgment to require satisfactory security before shipment of products to Customer. Customer grants to Company a security interest in all products and in all proceeds thereof until the complete purchase price and all additional costs are paid by Customer. Company may, at its option, file documents reasonably required to protect Company’s security interests in the products and Customer agrees to cooperate with Company in taking such actions. If Customer defaults in payments under any order, Company, at its option, may defer further shipment under any order from Customer until Customer re-establishes satisfactory credit, or Company may cancel the unshipped portion of any order without any liability on the part of Company for failure to ship. Customer shall not be entitled to deduct from the price invoiced by Company any claim by Customer against Company. If Company finds it necessary to employ an attorney or third party agent to collect any past due amounts owed, it may collect, in addition to any other sum owed, its reasonable fees expended for such collection services.
3.. Limitation of Liability
NOTWITHSTANDING WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, COMPANY’S LIABILITY HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT GIVING RISE TO SUCH LIABILITY, REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR LOST GOODWILL, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Permitted Variations.
Without notice to Customer, Company may at any time make any change or variation in the products which, in Company’s opinion, does not affect the general characteristics or properties thereof and complies with any then applicable governmental or professional requirements and such variation shall be deemed to have fulfilled the terms hereof.
5. Limitation of Actions
Customer may not bring any action or claim against Company, on any theory whatsoever, related to the Terms and Conditions or products more than one (1) year following the accrual of the action or claim.
6. Nature of Relationship
Customer understands that its relationship with Company under the Terms and Conditions and in connection with the purchase of any products from Company hereunder is only that of a buyer and seller of goods. Under no circumstances whatsoever shall any type of franchisee, dealership, or distributorship arrangement or obligation be created in connection herewith, unless established in a formal written agreement signed by both Customer and Company. Any technical data or advice furnished by Company with respect to the products and use of the products given without charge and Company assumes no obligation or liability for such information.
7. Termination by Company
Company may terminate an order from Customer immediately by written notice to Customer without liability or further obligation hereunder if Customer fails or refuses to furnish Company with such information and assurances as Company may request about Customer’s financial and operating conditions as affecting Customer’s ability to purchase products and, to the extent permitted by law, in the event of Customer’s insolvency, the filing of a voluntary or involuntary petition in bankruptcy by or against Customer, the appointment of a receiver or trustee for Customer, Customer’s execution of an assignment for the benefit of creditors, or a comparable event.
8. General.
The failure of Company to insist upon strict compliance with any or all of the terms and conditions herein contained shall not be deemed to be a waiver of any such terms and conditions or of any rights or remedies which Company shall have in demanding strict compliance with all of the terms and conditions contained herein. Company may freely assign the Terms and Conditions.
9. Governing Law; Jurisdiction.
All issues concerning the performance or interpretation of any contract regarding the purchase of any product shall be governed by the internal substantive laws of the Commonwealth of Pennsylvania without regard to its provisions regarding conflicts of law. Any dispute arising under these Terms and Conditions shall be settled exclusively in the state and federal courts located in Lackawanna County, Pennsylvania, and each of the parties hereto hereby submit to the exclusive jurisdiction of such courts unless Company, in its sole discretion, decides to bring a claim in another court of competent jurisdiction.