Date: August 24, 2021

 

Foray Design, LLC (“We” or “Foray Design”) owns and operates www.foraylockout-tools.org (the “Site”). Foray Design sells products (the “Products”) to individuals and entities (“You” or “User”) through this Site.

Products are only sold to Eligible Buyers “Eligible Buyers” are: (a) Public Service Providers (police, fire, marshalls, EMS and active duty military); (b) Registered Locksmiths; (c) Automobile Repair Shops; (d) Auto Repossessors; (e) Tow Truck Businesses; (f) New and Used Car Dealers; and (g) a bona fide purchaser for one of the above-mentioned categories of Eligible Buyers. Foray Design will not deliver any of its locksmithing devices through the mail to any Eligible Buyers who cannot prove to Foray Design’s satisfaction, as Foray Design determines in its sole discretion, that they belong to the aforementioned list of Eligible Buyers.

 

YOU, NOT FORAY DESIGN, ARE RESPONSIBLE FOR OBEYING ALL FEDERAL, STATE AND LOCAL LAWS PERTAINING TO THE PURCHASE, OWNERSHIP, POSSESSION AND USE OF PRODUCTS YOU ORDER FROM FORAY DESIGN.  DO NOT ORDER ANY PRODUCT FROM FORAY DESIGN UNLESS YOU ARE CERTAIN THAT YOU ARE ELIGIBLE TO PURCHASE, OWN, POSSESS, AND USE THE PRODUCT YOU ORDER.

 

Eligible Buyers do not include distributors, dealers and re-sellers. Should such persons seek to sell Foray Design’s product lines, such persons must first enter into a written contract to do so with Foray Design. To receive such a written contract, a distributor, dealer and re-seller may contact Foray Design by mail at Foray Design, LLC 17116 Melgrave Ave. Cleveland, Ohio 44135, by e-mail at foraydesigns@gmail.com or by telephone at (216) 941-2516.

 

As the owner of this Site, Foray Design has adopted terms that govern Your purchase of Products through this Site.

PLEASE READ TERMS OF SALE CAREFULLY AND MAKE CERTAIN THAT YOU UNDERSTAND EACH OF THEM BEFORE YOU USE THIS WEBSITE OR MAKE A PURCHASE OF ANY FORAY DESIGN PRODUCTS.

YOU SHOULD CHECK THE SITE REGULARLY TO TAKE NOTICE OF ANY CHANGES FORAY DESIGN MAY HAVE MADE TO THE TERMS OF SALE AND OTHER IMPORTANT MATTERS, SUCH AS ITS TERMS OF USE AND PRIVACY POLICY.

1.      ACCEPTANCE OF TERMS

THESE TERMS OF SALE CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR USE OF THIS WEBSITE AND YOUR PURCHASE OF FORAY DESIGN PRODUCTS, AS WELL AS YOUR RIGHTS AND OBLIGATIONS AND THE CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU AND YOUR PURCHASE OF PRODUCTS FROM FORAY DESIGN, INCLUDING, WITHOUT LIMITATION:

• Disclaimers of Warranty

• Limitations on Liability

• Prohibition on Modifications and Resale

• Informal Dispute Resolution Precondition

• Selection of Time-Period in which All Claims Must be Brought

• Selection of Applicable Law

• Selection of Exclusive Jurisdiction for Lawsuits

• Waiver of Right to Jury Trial

• Waiver of Right to File or Participate in Class Action

• Indemnification

 

BY PURCHASING FORAY DESIGN PRODUCTS, YOU ARE AGREEING TO ALL OF THE TERMS OF SALE, AS THEY PRESENTLY APPEAR OR AS THEY MAY BE UPDATED BY FORAY DESIGN FROM TIME TO TIME.BY CLICKING “I AGREE” BEFORE MAKING THE PURCHASE OF A PRODUCT, YOU ARE INDICATING YOUR AGREEMENT TO EACH OF THE TERMS OF SALE CONTAINED HEREIN, EACH OF WHICH AND ALL OF WHICH, BOTH INDIVIDUALLY AND COLLECTIVELY, SHALL BE BINDING UPON YOU.

YOU SHOULD NOT PURCHASE A FORAY DESIGN PRODUCT IF YOU DO NOT AGREE TO THE TERMS OF SALE AND YOU WILL NOT BE PERMITTED TO PURCHASE FORAY DESIGN PRODUCTS UNLESS YOU INDICATE YOUR AGREEMENT TO THE TERMS OF SALE WHEN PROMPTED TO DO SO BEFORE YOU PURCHASE FORAY DESIGN PRODUCTS.

2.      INTELLECTUAL PROPERTY RIGHTS

The intellectual property rights in or associated with this Site, including, without limitation, in all software and content (including, but not limited to, text, photographic images and videos) made available to You on or through this Site are and remain the property of Foray Design and are protected by intellectual property, trade secret and copyright laws and treaties around the world. All such rights are reserved by Foray Design. Your access to this Site and use of this Site do not transfer to You any ownership rights or license to use or commercially exploit the intellectual property, trade secret or copyright rights of Foray Design.

 

The intellectual property rights Foray Design have in its business and affairs and in the Products it sells on this Site, or uses to manufacture or deliver such Products, belongs solely to Foray Design. and Your purchase of a Product sold on this Site does not give to You any ownership, use or license rights in or pertaining to such property. You may not sell, use or license such intellectual property rights or otherwise seek to acquire, exercise or commercially exploit them.

3.      CUSTOMER ACCOUNTS AND SECURITY OBLIGATIONS

You may purchase a Foray Design Product without creating a a customer account on the Site. Once You are a customer, You may create a customer account. Should you create a customer account, You will be able to check past orders and other information, such as the shipping address on file.

When You purchase a Product or create a customer account with Foray Design, You agree to provide true, accurate and complete information requested by Foray Design to purchase a Product or register Your customer account and to maintain and promptly update this information to keep it true, accurate and complete. In the event you provide untrue, inaccurate or incomplete information or Foray Design has reason to suspect that the information is untrue, inaccurate or incomplete, Foray Design has the right, without limiting any of its other rights, to suspend or terminate Your customer account in its sole discretion.

You are responsible for: (a) properly signing into and out of Your session and Your account at the beginning and end of each session or transaction; (b) maintaining the confidentiality of Your username and password and  other information that could be used to purchase a Product or access or use Your Account; (c) immediately notifying Foray Design of any unauthorized purchase or use of Your personal information, including Your username or password, and/or access to or use of Your account, or other potential or actual breach of security; and (d) taking all security measures You can reasonably use to protect Your personal information, including Your username or password, or Your customer account and the information contained in it from unauthorized access, misuse, loss, theft, disclosure, alteration, destruction and other unwanted actions. 

If you provide Your personal information, including Your username and password, or financial information that could be used to purchase a Product to others and an unauthorized purchase is made or Your account is accessed and/or used, You will indemnify, defend and hold harmless Foray Design and its owners, directors, officers, employees, consultants, contractors, agents, representatives, successors, predecessors, affiliates and assigns, from any and all claims, liabilities, losses, damages and/or expenses or costs (including, but not limited to, reasonable attorney’s fees) You may incur arising out of this misuse of Your information or access to or use of Your account or which the person You provided such information to incurs arising out of this misuse of Your information or access to and use of Your account.

YOU ACKNOWLEDGE AND AGREE THAT FORAY DESIGN SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR BREACH OF THIS SECTION.

You may terminate Your customer account at any time. Once you have terminated Your customer account, You may not use it again to purchase Foray Design Products and, if You decide to purchase Foray Design Products through Your customer account, You will need to open up a new customer account. After an account closure, Foray Design may maintain customer account information in accordance with its Privacy Policy.  

4.         ORDERING A FORAY DESIGN PRODUCT

 

Foray Design has the right to limit the sale of the Products identified on this Site for sale to Eligible Buyers or to deny the sale of the Products identified on this Site for sale to any person, even if such person is an Eligible Buyer, in its sole discretion and without any notice to You.

 

In addition, Foray Design has the right to offer the Products identified on this Site for sale and may withdraw or remove any Products for sale in its sole discretion and without any notice to You.

 

In addition, Foray Design has the right to revise the nature, color, appearance and any and all other characteristics of the Products identified on this Site and any and all other characteristics of its Products, as well as the prices for its Products, in its sole discretion and without any notice to You.

 

It is Your responsibility to periodically check the Site for any changes that may have occurred.

 

In order to purchase Products on this Site, You must be an Eligible Buyer.

 

Before You may order any Product from Foray Design through this Site, You must click the button “I Agree” that will appear during the ordering process.  By clicking “I Agree” You are agreeing to these specific Terms of Sale. You are also agreeing that: (a) these Terms of Sale are valid and enforceable; (b) You will not seek to invalidate or render inapplicable or unenforceable any or all of these Terms of Sale; and (b) You will not otherwise seek a modification of any or all of these Terms of Sale in any way or to any degree in any court or other tribunal. 

 

By clicking “I Agree” You are also representing and warranting to Foray Design that: (a) if  You are an individual, You are agreeing to these specific Terms of Sale; (b) if You are ordering for an entity or organization, You have the authority to make this purchase for the entity or organization, and You are agreeing on behalf of Your entity or organization to these specific Terms of Sale; (c) You have had sufficient time to consider Your decision whether to make this purchase and agree to these specific Terms of Sale and You have consulted with whomever you deem appropriate about such decisions;  (d) You have read these specific Terms of Sale and understand each of them and their consequences, individually and taken as a whole; and (e) You have made this purchase and agreed to these specific Terms of Sale voluntarily, without any duress, coercion or undue influence, or based upon some promise, representation or other statement not contained herein.

In addition, by clicking “I Agree” You are representing and warranting to Foray Design that: (i) all of the information You provide to make the purchase and to have the Product shipped to You is true and accurate; (ii) You are an authorized user of the credit or debit card or other purchasing service (such as PayPal, WixPay, POS, or AliPay) used to place Your order; (iii)  You are responsible for all charges incurred in connection with Your purchase and that there are sufficient funds to cover the cost of Your purchase; (iv) the purchase amount is correct and You agree to immediately pay or cause to be paid these charges, without any credits, deductions or off-sets or delay for any reason; and (v) all such charges will be honored by Your credit card company or Your bank or other purchasing service (such as PayPal, WixPay, POS, or AliPay)  and You are not aware of any fact that would cause Your credit card company or Your bank or other purchasing service (such as PayPal, WixPay, POS, or AliPay) to dishonor, either in whole or in part, the payment of the charges incurred in connection with Your Purchase.

 

In addition, by clicking “I Agree” You are representing and warranting that You (both as an individual and as an individual on behalf of an entity or organization) are an Eligible Buyer and, if You are an entity or organization, the Products will only be used by employees of the entity or organization who are competent, trained and experienced operators, that both the entity and organization and its employees understand that use of the Products can be dangerous and that the entity or organization shall bear all responsibility for any liability to the person using such Products.

 

In addition, by clicking “I Agree” You are representing and warranting that Your use of the Products will be solely for lawful purposes and that You have complied and will comply with all applicable legislation, regulation, orders and ordinances.

 

Upon receiving Your order, Foray Design carries out a standard authorization check on Your payment card to ensure there are sufficient funds to fulfil the transaction or the transaction has been authorized if You are using a credit or debit card.  No order will be accepted or Product shipped to You until sometime after the successful processing of your payment through your debit or credit card company, Your bank or through some other purchasing service (such as PayPal, WixPay, POS, or AliPay).

 

If the order is from a Public Service Provider, the Public Service Provider may be exempt from sales tax.

 

To the extent You are orally told or receive a document from Foray Design that is different from or inconsistent with any of these specific Terms of Sale, the specific Terms of Sale on this Site shall be controlling and the different or inconsistent terms and conditions shall have no force or effect.

 

Foray Design reserves the right to accept or reject any order in its sole discretion, and to  modify the terms of the order, such as placing quantity and other limits on it, in its sole discretion. If it modifies the terms of the order, such as placing a quantity limit on it, Foray Design will attempt to contact you by telephone, e-mail or other means based upon the contact information it has on file.

 

In addition, all orders are subject to availability, confirmation of the order price and other conditions necessary for Foray Design to accept Your order and ship the ordered Product to You. The cost of Products may fluctuate. All prices advertised are subject to such changes.

 

In addition, Foray Design reserves the right in its sole discretion to cancel any order at any time and without notice that appear to be placed by any distributor, dealer or re-seller or to have been placed by an individual or entity or organization who is not an Eligible Buyer.

 

While Foray Design tries to ensure that all details, descriptions and prices which appear on this Site are accurate, errors may occur. If it discovers an error in the price of any Product which You have ordered, Foray Design will inform you of this as soon as is practicable and give you the option of reconfirming Your order at the correct price or cancelling it. If Foray Design is unable to contact you, Foray Design will treat the order as cancelled.

 

Foray Design retains the right to refuse any order made by You.

 

All prices are quoted in U.S. dollars. You are not only responsible for the quoted price for the Product, but also for shipping and handling costs, plus any applicable tax, which will be added to the quoted price for the Product.

 

FORAY DESIGN IS NOT BE RESPONSIBLE FOR REJECTION OF ORDERS, DELAYS IN YOUR RECEIPT OF PURCHASED PRODUCTS, AND THE COST OF SHIPPING PRODUCTS TO YOU.

 

You agree to the specific Terms of Sale at the time of purchase and You agree not to seek to vary, modify, amend, avoid, challenge, interfere with or impair or invalidate any of these specific Terms of Sale. Foray Design’s acceptance of Your order is expressly conditioned on Your assent to these specific Terms of Sale at the time of purchase and Your continued assent to these specific Terms of Sale and at all times thereafter.

 

Shipping times may vary according to availability and may also be subject to delays resulting from postal or delivery carrier delays, force majeure or other reasons beyond Foray Design’s control.

 

YOU SOLELY BEAR ALL RISKS ARISING OUT OF OR OTHERWISE CONNECTED TO THE SHIPPING OF THE PRODUCT YOU ORDERED, INCLUDING, WITHOUT LIMITATION, DAMAGE TO THE ORDERED PRODUCT.

 

5.         DISTRIBUTORS, DEALERS AND RE-SELLERS

 

              Foray Design welcomes sales of its Products through distributors, dealers and re-sellers However, distributors, dealers and re-sellers must first enter into a written contract with Foray Design to sell Foray Design’s Product lines. To receive such a written contract, a distributor, dealer and re-seller may contact Foray Design by mail at Foray Design, LLC 17116 Melgrave Ave. Cleveland, Ohio 44135, by e-mail at foraydesigns@gmail.com or by telephone at (216) 941-2516.

 

6.           PRODUCT USE, MAINTENANCE  AND SAFETY

 

Purchasers of the Product and, if an entity or organization, their qualified employees, are the only persons who may use the Product.

In addition, the Products offered for sale on this Site are only to be used by competent, trained and experienced operators and can be dangerous if not used by competent, trained and experienced operators.

Products should be inspected before each use. Normal wear and tear should be expected with the use of the Products. Worn or unsafe parts should be placed out of service and new tools ordered.

Safety gear (including, but not limited to, gloves and safety glasses) should be worn when using the Products.

All Products should be kept clean and in good repair. Rods should be wiped down after each use.

The use of the purchased Product must be done by a competent, trained and experienced operator and the Product must be used for its intended purpose only and in a safe manner.

You are prohibited from modifying, altering, changing or repairing the Product you have purchased from Foray Design in any way, shape or form, regardless of the materiality of any such modification, alteration, change, or repair.

FORAY DESIGN SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INJURY OR DAMAGES TO YOU, YOUR EMPLOYEES OR TO A THIRD-PARTY ARISING OUT OF OR OTHERWISE CONNECTED TO THE USE OR MISUSE OF ITS PRODUCT (INCLUDING BUT NOT LIMITED TO  CIRCUMSTANCES WHERE THE PRODUCT IS USED BY A PERSON WHO IS NOT A COMPETENT, TRAINED AND EXPERIENCED OPERATOR OR THE PRODUCT IS USED FOR AN UNINTENDED PURPOSE OR IN AN UNSAFE WAY, OR THE PRODUCT IS MODIFIED, ALTERED, REPAIRED OR OTHERWISE CHANGED) WHATSOEVER AND YOU AGREE TO INDEMNIFY FORAY DESIGN AND HOLD FORAY DESIGN HARMLESS FROM ANY EXPENSE, LOSS OR DAMAGE YOU, YOUR EMPLOYEE OR A THIRD-PARTY SUSTAINS RELATING THERETO, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND COSTS OF LITIGATION.

Unless Foray Design has authorized you to do so through a written contract, You may not market, distribute, or resell any product you have purchased from Foray Design.

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7.      PRODUCT RETURNS

Products must be returned within 30 days from the date of Your purchase of the Product to return it and to receive an exchange, account credit or refund. If 30 days have passed from the date of Your purchase of the Product, Foray Design does not offer You an exchange, account credit or refund.

In order to be returned, the Product must be returned in new, unused and undamaged condition or it must be defective, as determined by Foray Design in its sole discretion. If the Product is not new or has been used or is damaged, the Product is not returnable and Foray Design will not provide any exchanges, account credits or refunds. 

For Product returns, including defective Products, please e-mail Foray Designs at foraydesigns@gmail.com or call at 216-941-2516 to receive instructions on how proceed. 

Defective Product Returns. Foray Design offers You a 100% money back guarantee on all defective Products.

Once You have returned the Product You believe to be defective to Foray Design and Foray Design has conducted its inspection of it, Foray Design will determine in its sole discretion whether the Product is defective. Foray Design will then inform You of its determination.

If Foray Design has determined that You received a defective Product, You have three options: (a) You can exchange the defective Product for a replacement Product at no cost to you; (b) You can receive a credit to Your account for both the Product charges and the cost of shipping it to You; or (c) You can receive a refund for both the Product charges and the cost of shipping it to You.

If you have returned a Product You believe is defective but Foray Design has determined is not defective and the Product is new, unused and undamaged, Foray Design will refund to You the amount it has charged You for the purchase of the Product, excluding the shipping costs associated with sending you the Product You ordered. This credit or refund is also subject to a 25% restocking fee.

Non-Defective Product Returns. If You have returned a Product for whatever reason other than the Product is defective and the Product is new, unused and undamaged, Foray Design will credit Your account or refund to You the amount it has charged You for the purchase of the Product, excluding the shipping costs associated with sending you the Product You ordered. This credit or refund is also subject to a 25% restocking fee.

Products Damaged During Shipment. Foray Design is not responsible for damage to Your Product that has occurred as a result of its shipment to You after You have signed for the delivery of the Product. If Your Product has arrived damaged, You are responsible for contacting the carrier within 24 hours of receipt and working out a resolution of the issues connected with Products damaged during shipping. Foray Design will not accept Products that are damaged for return, exchange, account credit or refund.

Cancelled Orders. If You cancel all or part of an order after Foray Design has charged You for the Product, Foray Design will credit Your account or refund to You the full amount charged. If You cancel an order while the ordered Product is in transit or it has been delivered, You are responsible for returning the Product to Foray Design and are responsible for all costs associated with returning the Product to Foray Design. If the Product is in new, unused and undamaged condition, Foray Design will credit Your account or refund to You the amount it has charged You for the purchase of the Product, excluding the shipping costs associated with sending you the Product You ordered. This credit or refund is also subject to a 25% restocking fee.

Processing a return may take between two to five weeks through the mail.

 

8.      WARRANTY DISCLAIMERS AND LIMITATIONS ON DAMAGES

YOU ARE PURCHASING A FORAY DESIGN PRODUCT ON AN “AS-IS,” “AS AVAILABLE,” AND “AS IT IS INTENDED TO BE USED AND ONLY FOR SUCH USES,” BASIS, WITHOUT WARRANTY OF ANY KIND, EXCEPT AS EXPRESSLY SET FORTH HEREIN.

 

FORAY DESIGN DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

THE SOLE AND ENTIRE MAXIMUM LIABILITY OF FORAY DESIGN FOR ANY REASON NO MATTER THE EXPENSE, LOSS OR DAMAGE SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED BY YOU, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE PARTICULAR PRODUCTS PURCHASED.   YOUR EXCLUSIVE REMEDY AGAINST FORAY DESIGN IS THE AMOUNT PAID BY YOU FOR THE PARTICULAR PRODUCTS PURCHASED.

 

FORAY DESIGN SHALL NOT BE LIABLE TO YOU FOR ANY EXPENSE, LOSS OR DAMAGES, INCLUDING INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR THE LOSS OF BUSINESS, EARNINGS OR PROFITS), SPECIAL, DOUBLED, TRIPLED OR OTHERWISE MULTIPLIED EXEMPLARY OR PUNITIVE DAMAGES, OR ATTORNEY’S FEES OR THE COSTS OF LITIGATION, NO MATTER WHETHER THE CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR RECKLESS OR INTENTIONAL CAUSES OF ACTION) PRODUCT LIABILITY, CONSUMER PROTECTION STATUTES OR LAW, OR ANY LAW DESIGNED TO PROTECT ANY INTENDED OR UNINTENDED USER OF THE PRODUCT, EVEN IF FORAY DESIGN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

YOU EXPRESSLY AGREE THAT FORAY DESIGN’S TOTAL LIABILITY TO YOU (OR ANY THIRD-PARTY WHO USES THE PRODUCT YOU PURCHASED) IS STRICTLY LIMITED TO THE MONIES PAID TO FORAY DESIGN BY YOU UNDER THIS AGREEMENT.

 

YOU EXPRESSLY AGREE THAT YOU WILL NOT REQUEST, FILE A CLAIM FOR OR EXECUTE A JUDGMENT OR OTHERWISE SEEK TO COLLECT ANY MONIES FROM FORAY DESIGN FOR ANY SUCH EXPENSES, LOSSES OR DAMAGES OTHER THAN THE AMOUNT OF MONEY YOU PAID FOR THE PURCHASE OF THE PRODUCT FROM FORAY DESIGN.

 

YOU ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE THAT: (A) THE LIMITATIONS OF WARRANTY AND DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FORAY DESIGN; (B) FORAY DESIGN WOULD NOT HAVE SOLD THE PRODUCT TO YOU IF SUCH LIMITATIONS OF WARRANTY AND DAMAGES WERE NOT INCLUDED IN THIS AGREEMENT: AND (C). YOU WILL NOT SEEK TO HAVE THE LIMITATIONS OF WARRANTY AND DAMAGES SET FORTH HEREIN VOIDED OR RENDERED UNENFORCEABLE.

YOU UNDERSTAND THAT, ABSENT THESE MANDATORY PROVISIONS, YOU MIGHT HAVE THE RIGHT TO PURSUE YOUR CLAIM AGAINST FORAY DESIGN THAT ARE NOT LIMITED IN TERMS OF THE DISCLAIMED WARRANTIES OR THE DAMAGES THAT MIGHT BE RECOVERED AND THAT YOU ARE GIVING UP YOUR RIGHT TO PURSUE THESE CLAIMS WITHOUT SUCH LIMITATIONS BY AGREEING TO THIS MANDATORY PROVISION. PLEASE NOTE THAT SOME STATES MAY HAVE LAWS THAT APPLY TO THESE DISCLAIMED WARRANTIES AND LIMITATIONS OF LIABILITY.

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9.      DISPUTE RESOLUTION

Initial Dispute Resolution.  Foray Design is available by telephone at 216-941-2516 and by e-mail at foraydesigns@gmail.com to address any questions, concerns or problems You may have.  You agree to use Your best efforts to resolve or settle any question, disagreement, dispute or claim through consultation and good faith discussions with Foray Design as a precondition to You initiating any lawsuit or other legal action against Foray Design. If You and Foray Design are unable to reach a resolution and thirty (30) days have elapsed since the time the above-referenced informal dispute resolution has been pursued and the dispute remains unresolved, You may then initiate a lawsuit or other legal action against Foray Design.

You acknowledge, represent, warrant and agree that: (a) this provision establishing an informal dispute resolution precondition to the filing of any lawsuit against Foray Design is a fundamental element of the basis of the bargain between You and Foray Design; (b) Foray Design would not have permitted You to use the Site and/or sold the Product to You if this provision establishing an informal dispute resolution precondition to the filing of any lawsuit against Foray Design were not part of this agreement; and (c) You will not seek to have this provision establishing an informal dispute resolution precondition to the filing of any lawsuit against Foray Design voided or rendered unenforceable.

You understand that, absent this mandatory provision, You would have the right to file an action against Foray Design without first participating in this informal dispute resolution mechanism.

 

Time for Asserting Claim. You agree that, regardless of any statute or law to the contrary, that You must bring any claim against Foray Design concerning Your use of the Site, Your customer account, any Product ordered, purchased, and/or used, or which arise under or are connected with the Terms of Use, Foray Design’s Privacy Policy, these Terms of Sale, either directly or indirectly, or otherwise between You and Foray Design within six (6) months after the alleged wrongful conduct occurred on the part of Foray Design or the first instance of alleged wrongful conduct occurred on the part of Foray Design if more than one instance of wrongful conduct is alleged to have occurred or be forever barred from bringing such claim or action.

You acknowledge, represent, warrant and agree that: (a) this provision governing the time to assert a claim against Foray Design is a fundamental element of the basis of the bargain between you and Foray Design; (b) Foray Design would not have permitted You to use the Site and/or sold the Product to You if this provision if this provision governing the time in which to assert a claim against Foray Design were not part of this agreement; and (c) You will not seek to have this provision governing the time in which to assert a claim against Foray Design voided or rendered unenforceable.

You understand that, absent this mandatory provision, You would have the right to file an action against Foray Design within the time period set by law and that this time period would be longer than the six (6) months contained in this provision governing the time in which to assert a claim.

 

Choice of Law and Forum.  By using the Site, establishing and maintaining a customer account and/or purchasing a Product through this Site,  You agree that these Terms of Sale and Foray Design’s Terms of Use and, all disputes concerning Your use of the Site, any Product ordered, purchased, and/or used, or which arise under or are connected with these Terms of Sale or Foray Design’s Terms of Use, either directly or indirectly, or between You and Foray Design shall be (a) construed and enforced in accordance with the laws of the State of Ohio, without reference to conflict of law principles;  and (b) shall be brought in either the Cuyahoga Common Pleas Court  of the State of Ohio or the United States District Court for the Northern District of Ohio, Eastern Division, to the extent not prohibited by law. Further, By using the Site, establishing and maintaining a customer account and/or purchasing a Product through this Site, You  hereby waive, and agree not to assert, by way of a motion or answer, or the assertion of a defense, or otherwise that : (a) that law of a State other than the law referenced above applies to the dispute; and (b) the Ohio courts referenced above lack subject matter jurisdiction or personal jurisdiction over You, or that such court is an inconvenient forum, venue is improper with such court, or there is some other reason for dismissing (other than on the merits) or transferring the filed action, to the extent not prohibited by law

 

You acknowledge, represent, warrant and agree that; (a) this choice of law and forum selection provision is a fundamental element of the basis of the bargain between you and Foray Design; (b) Foray Design would not have permitted You to use the Site and/or sold the Product to You if this provision if this choice of law and forum selection provision were not part of this agreement; and (c) You will not seek to have this choice of law and forum selection provision voided or rendered unenforceable.

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You understand that, absent this mandatory provision, You would have the right to file an action against Foray Design in any court with proper jurisdiction and venue and that You would not be limited to the courts contained in this forum selection provision and that the court would determine what law to apply to the dispute and that it would not be directed to apply Ohio law to the dispute.

 

Waiver of Jury Trial. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THE PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS OF SALE, FORAY DESIGN’S TERMS OR USE OR ANY OTHER DISPUTE BETWEEN THE PARTIES (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

 

YOU ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE THAT; (A) THIS WAIVER OF JURY TRIAL IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FORAY DESIGN; AND (B) FORAY DESIGN WOULD NOT HAVE PERMITTED YOU TO USE THE SITE AND/OR SOLD THE PRODUCT TO YOU IF THIS PROVISION TO YOU IF THIS WAIVER OF JURY TRIAL WERE NOT PART OF THIS AGREEMENT; AND (C) YOU WILL NOT SEEK TO HAVE THIS WAIVER OF JURY TRIAL VOIDED OR RENDERED UNENFORCEABLE.

You understand that, absent this mandatory provision, You would have the right to a trial by jury on all issues properly triable by a jury and that You are giving up this right by agreeing to this mandatory provision.

 

Class Action Waiver. EACH PARTY WAIVES ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW.

TO THE EXTENT EITHER PARTY IS PERMITTED TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS OF SALE OR FORAY DESIGN’S TERMS OF USE); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. 

YOU ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE THAT; (A) THIS CLASS ACTION WAIVER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FORAY DESIGN; AND (B) FORAY DESIGN WOULD NOT HAVE PERMITTED YOU TO USE THE SITE AND/OR SOLD THE PRODUCT TO YOU IF THIS PROVISION IF THIS CLASS ACTION WAIVER WERE NOT PART OF THIS AGREEMENT; AND (C) YOU WILL NOT SEEK TO HAVE THIS CLASS ACTION WAIVER VOIDED OR RENDERED UNENFORCEABLE.

You understand that, absent this mandatory provision, You might have the right to pursue Your claim against Foray Design as a member of a class and that You are giving up this right by agreeing to this mandatory provision.

 

Indemnification. You agree to indemnify, defend and hold harmless Foray Design and its owners, directors, officers, employees, consultants, contractors, agents, representatives, successors, predecessors, affiliates and assigns, from any and all claims, liabilities, losses, damages and/or expenses or costs (including, but not limited to, reasonable attorney’s fees) arising from: (a) Your use this Site, Your purchase of any Product, the shipping of any Product to You and any use or misuse of any Product; (b) Your breach of any term contained in Foray Design’s Terms of Use and Terms of Sale; (c) Your challenge to the validity or enforcement of any term contained in Foray Design’s Terms of Use and Terms of Sale that may occur, whether such challenge seeks to invalidate or render inapplicable or unenforceable any term contained in Foray Design’s Terms of Use and  Terms of Sale; and/or (d) any other conduct You undertake or Your failure to act when You have a duty to act which is wrongful under the law.  

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10.    OTHER IMPORTANT LEGAL TERMS

Notices. Notices to be made pursuant to these Terms of Sale shall be sent to Foray Design at to President, Foray Design, LLC 17116 Melgrave Ave. Cleveland, Ohio 44135 and to You at the address and/or e-mail you have provided to Foray Design.

Complete Agreement. These Terms of Sale constitute the complete, final and entire agreement between Foray Design and You, and there are no other promises, representations, warranties or other statements, whether verbal or inferred from conduct, or understandings, commitments or contracts, whether oral, written or based upon conduct, between Foray Design and You relating to the subject matter of these Terms of Sale; provided, however, that each Party acknowledges and agrees that there are Terms of Use between Foray Design and You and Foray Design’s Privacy Policy (which is incorporated into its Terms of Use) and nothing contained in this provision makes such Terms of Use or Privacy Policy void or unenforceable.  These Terms of Sale supersede any and all prior or contemporaneous promises, representations, warranties or other statements, whether verbal or inferred from conduct, understandings, commitments or contracts, whether oral, written or based upon conduct, between Foray Design and You with respect to subject matter of these Terms of Sale.  

Rules of Construction. These Terms of Sale shall not be strictly construed or enforced against Foray Design, and any ambiguity in any term or condition contained in these Terms of Sale shall not be interpreted in favor of You and against Foray Design, based upon any rule of construction whose premise is based upon the party drafting and/or publishing these Terms of Sale or any other reason whatsoever.

Modifications and Wavier. Foray Design may modify and amend these terms of Sale within its sole discretion and such modifications and amendments shall be effective upon their posting on the Site. No employee or representative of Foray Design may agree with You to modify, amend or waive any provision of the Terms of Sale. Such an agreement with You must be reached with the Chief Executive or President of Foray Design and documented in a writing signed by the President of Foray Design for it to be effective and enforceable. No failure or delay on the part of Foray Design to exercise any right under these Terms of Sale or to enforce any obligation under these Terms of Sale shall operate as a waiver, except as expressly set forth herein, nor shall a single, partial or limited exercise of a right or enforcement of an obligation thereof preclude any other or further exercise of the right or enforcement of the obligation, or of the exercise of any other right or enforcement of any other obligation.

Severability.  The terms of these Terms of Sale, whether so expressed or not, are separable, and the non-enforceability of any term or condition shall not affect the validity and enforceability of any other term or condition.  Further, in the event any term or condition is not enforceable or not enforceable in full, it is the parties’ intent that such term or condition nonetheless be enforced to the fullest extent permitted by law.

Assignments.  You may not assign or delegate any rights or obligations under these Terms of Sale without signed, written consent from Foray Design. Any such assignment or delegation of rights or obligation without Foray Design’s signed, written consent shall be ineffective and unenforceable. Further, the Foray Design may refuse to consent to such assignment or delegation in its sole discretion.  Foray Design may assign or delegate its rights or obligations under these Terms of Sale, fully or partially, without either notice to You or consent from You.

Successors and Assigns.  These Terms of Sale shall bind Foray Design and You, and each of its and Your successors, assigns and heirs, any administrator of Your estate, any trustee of its or Your affairs and any fiduciary appointed over its or Your person or affairs.

Force Majeure.  Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement resulting, directly or indirectly, from acts of God, civil or military authority, acts of a public enemy, war, riots, terrorism, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, breakdown of equipment, or any causes beyond the reasonable control of such party.

 

11.    CHANGES TO TERMS OF SALE

 

Foray Design may change these Terms of Sale in its sole discretion. It is Your responsibility to check the Site regularly to take notice of any changes Foray Design may have made to the Terms of Sale and other important matters, such as its Terms of Use and Privacy Policy.