Foray Design, LLC (“We” or “Foray Design”) owns and operates www.foraylockout-tools.org (the “Site”). Foray Design sells products (the “Products”) to individuals, entities and organizations (“You” or “User”) through this Site. “You” and “User” includes not only the individual visiting the Site, but, in cases where the individual is acting on behalf of some entity or organization, the entity and organization as well. 

PLEASE READ THESE TERMS OF USE CAREFULLY AND MAKE CERTAIN THAT YOU UNDERSTAND EACH OF THEM BEFORE YOU USE THIS WEBSITE.

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1.      ACCEPTANCE OF TERMS

These Terms of Use set out the terms between Foray Design and You under which You may access and use this Site. These Terms of Use apply to all visitors to and users of this Site, including the individual visiting or using this Site, as well as the entity or organization on whose behalf he or she is visiting or using this Site.

 

FORAY DESIGN HAS ALSO ADOPTED A PRIVACY POLICY. FORAY DESIGN’S PRIVACY POLICY, INCLUDING ALL MODIFICATIONS AND SUPPLEMENTS TO IT, IS INCORPORATED INTO THESE TERMS OF USE AND IS AVAILABLE ON THE HOME PAGE OF FORAY DESIGN’S SITE.

 

BY USE OF THE SITE, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY ALL TERMS IN FORAY DESIGN’S TERMS OF USE, INCLUDING, WITHOUT LIMITATION, FORAY DESIGN’S PRIVACY POLICY.

THESE TERMS OF USE AND FORAY DESIGN’S PRIVACY POLICY CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR USE OF THE SITE AS WELL AS YOUR RIGHTS AND OBLIGATIONS AND THE CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU, INCLUDING, WITHOUT LIMITATION:

• Liability Disclaimers

• 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

YOU SHOULD NOT USE THIS SITE UNLESS YOU ARE IN AGREEMENT WITH THESE TERMS OF USE AND FORAY DESIGN’S PRIVACY POLICY.

YOU ARE ALSO NOT PERMITTED TO USE THIS WEBSITE IF YOU ARE NOT EIGHTEEN (18) YEARS OLD. 

 

You may purchase Foray Design Products through the Site without first establishing a customer account.  Accounts with Foray Design are explained below. BEFORE PURCHASING A FORAY DESIGN PRODUCT ON THIS SITE, YOU MUST FIRST AGREE TO FORAY DESIGN’S TERMS OF SALE. FORAY DESIGN’S TERMS OF SALE IS AN AGREEMENT BETWEEN YOU AND FORAY DESIGN SEPARATE AND DISTINCT FROM THESE TERMS OF USE, INCLUDING, WITHOUT LIMITATION, FORAY DESIGN’S PRIVACY POLICY.

 

When You visit the Site, You will be asked if You agree to permit the use of cookies. Cookies are explained in Foray Design’s Privacy Policy. If you do not permit the use of cookies, there may be less functionality to the Site. Additionally, You will not be able to use Your Account to purchase Foray Design Products on this Site because Foray Design will not be able to verify Your Account information.

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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.

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3.      ACCESS TO SITE

 

Access to this Site is permitted on a temporary basis. Foray Design may prohibit You from using or restrict Your use of this Site and Your access to all or some parts or all of this Site in its sole discretion.

 

You may use this Site to purchase Foray Design Products made available to You through the Site only if you are an Eligible Buyer (which term is explained in the Terms of Sale).

You may only use this Site in accordance with these Terms of Use and in accordance with all applicable law.

You may store, print and display the content of this Site solely for Your personal use. You may not reproduce, adapt, modify, manipulate, publish, post or otherwise distribute to a person, groups of persons or to the public the contents of this Site or otherwise use the content of this Site for business or commercial purposes without the express written permission of Foray Design. 

4.      CUSTOMER ACCOUNTS AND SECURITY OBLIGATIONS

You may  purchase a Foray Design Product without creating 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 user name and 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.

  

5.         SITE CONTENTS AND LIABILITY DISCLAIMERS

 

Foray Design may not only withdraw or modify Your access to the Site, but it may withdraw or modify the content of this Site, the Terms of Use, its Privacy Policy, the Terms of Sale, the Products available for purchase through this Site, the prices for such Products, and any other matter relating to its business and affairs in its sole discretion and without prior notice to You. Such modifications affecting the use of this Site or the purchase of Products shall be effective upon publication on the Site with respect to the use of the Site and any and all transactions occurring on or after said date.

 

FORAY DESIGN WILL NOT BE LIABLE TO YOU IF FOR ANY REASON THIS SITE OR ANY PRODUCT IS UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD OF TIME.

 

THE INFORMATION DISPLAYED ON THIS SITE IS PROVIDED WITHOUT ANY GUARANTEES, CONDITIONS OR WARRANTIES AS TO ITS ACCURACY UNLESS EXPRESSLY STATED TO THE CONTRARY TO THE FULLEST EXTENT PERMITTED BY LAW. FORAY DESIGN AND ITS SUPPLIERS, CONTENT PROVIDERS AND ADVERTISERS HEREBY EXPRESSLY EXCLUDE ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR OTHER LAW AND SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA OR OTHER INTANGIBLES, DAMAGE TO GOODWILL OR REPUTATION, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, PERFORMANCE OR FAILURES OF THIS SITE OR THE LINKED SITES AND ANY MATERIALS POSTED THEREON, IRRESPECTIVE OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ARISE IN CONTRACT, TORT, EQUITY, RESTITUTION, BY STATUTE, AT COMMON LAW OR OTHERWISE.

FORAY DESIGN IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THIS WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOU ACKNOWLEDGE AND AGREE THAT: (A) NO SECURITY SYSTEM CAN BE MADE TO BE IMPENETRABLE AND COMPLETELY SECURE AND THAT AN UNAUTHORIZED THIRD-PARTY MAY GAIN ACCESS TO YOUR CUSTOMER ACCOUNT, THE INFORMATION IN IT, OTHER STORED INFORMATION AND/OR TO INTERCEPT TRANSMISSIONS AND INFORMATION BETWEEN FORAY DESIGN AND YOU AND/OR YOUR FINANCIAL INSTITUTION AND/OR OTHERS BY IMPROPER MEANS; (B) FORAY DESIGN CANNOT GUARANTEE THE SECURITY OF YOUR CUSTOMER ACCOUNT, THE INFORMATION IN IT, OTHER STORED INFORMATION AND TRANSMISSIONS OF INFORMATION BETWEEN FORAY DESIGN AND YOU AND/OR YOUR FINANCIAL INSTITUTION AND/OR OTHERS; AND (C) FORAY DESIGN IS NOT RESPONSIBLE TO YOU OR ANYONE ELSE FOR ANY BREACH OF SECURITY TO YOUR CUSTOMER ACCOUNT OR THE INFORMATION CONTAINED IN IT BY A THIRD-PARTY OR THE INTERCEPTION OF ANY TRANSMISSION OF INFORMATION BETWEEN FORAY DESIGN AND YOU AND/OR YOUR FINANCIAL INSTITUTION AND/OR OTHERS, AND SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGE YOU OR ANYONE ELSE MAY SUSTAIN AS A RESULT OF ANY UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR THE INFORMATION IN IT, OTHER STORED INFORMATION OR THE INTERCEPTION OF ANY TRANSMISSION OF INFORMATION BETWEEN FORAY DESIGN AND YOU AND/OR YOUR FINANCIAL INSTITUTION AND/OR OTHERS.

 

This Site may contain links to other websites (the "Linked Sites"), which are not operated by Foray Design. FORAY DESIGN HAS NO CONTROL OVER THE LINKED SITES AND ACCEPTS NO RESPONSIBILITY FOR THEM OR FOR ANY LOSS OR DAMAGE THAT MAY ARISE FROM YOUR USE OF THEM. YOUR USE OF THE LINKED SITES WILL BE SUBJECT TO THE TERMS OF USE AND SERVICE CONTAINED WITHIN EACH SUCH SITE.

 

6.         Prohibited Uses

 

You are prohibited from

 

undertaking any action, the intent or effect of which is to harm or which is likely to harm Foray Design in its business

 

reproducing, duplicating, copying, re-selling or commercializing or attempting to commercialize any part of the Site or any Product sold through this Site

 

 

You are also prohibited from using this Site:

 

in any way that violates any applicable local, state, national or international law or regulation

 

in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect

 

to commit or encourage a criminal offense

 

for the purpose of harming or attempting to harm any person, including, without limitation, adults and minors, in any way

 

to send, knowingly or recklessly receive, upload, download, use or re-use any material which does not comply with Foray Design’s content standards

 

to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional or marketing materials or other similar type of solicitation, including, without limitation, spam

 

You are also prohibited from:

accessing without authority, interfering with, damaging or disrupting any part of the Site, any equipment or network on which the Site is stored, any software used in the provision of the site any equipment or network or software owned or used by any third-party

knowingly or recklessly distributing or transmitting any data, sending or uploading any material that contains a virus, trojan horse, worm, logic bomb, time-bombs, keystroke loggers, ransomware, spyware, adware or any other harmful programs or similar computer which is designed to or has the effect of adversely affecting the Site or any computer hardware or software or otherwise is technologically harmful or conceals, locks or corrupts data or prevents or impairs the Site or any computer or other electronic device

hacking into any part of the Site or user account or other computer or device of Foray Design and its employees and contractors or computer or device of any user of this Site

intercepting any communications or transactions between Foray Design and any user of the Site or other individual or entity

taking any action that affects or attempts to affect the performance or functionality of any computer facilities of or accessed through this Site

knowingly or recklessly distributing or transmitting any data, sending or uploading any material which is malicious, offensive or obscene or which causes or is likely to cause annoyance or harm to other users of the Site

knowingly or recklessly distributing or transmitting any data, sending or uploading any material which in breach of confidence or duty owed to another person or entity

misappropriating, converting, infringing upon, misusing or impairing the intellectual property, trade secrets, confidential information, or proprietary rights of Foray Design, any user of this Site or other individual or entity 

Foray Design will report to the relevant law enforcement authorities any violation of law.

 

7.         INTERACTIVE SERVICES

 

From time to time, Foray Design may provide interactive services on the Site, including, without limitation, customer opinion and review posts (“Interactive Services”).  Should you have any questions or concerns about any Interactive Service, please contact Foray Design at 216-941-2516 or foraydesigns@gmail.com

 

Foray Design will use its best efforts to assess any possible risks for users from third-parties when a user uses any Interactive Service provided on the Site, and Foray Design will decide in each case in its sole discretion whether it is appropriate to use moderation of the relevant service (including what kind of moderation to use) in light of these risks. HOWEVER, FORAY DESIGN IS UNDER NO OBLIGATION TO OVERSEE, MONITOR OR MODERATE ANY INTERACTIVE SERVICE PROVIDED ON THE SITE AND IT EXPRESSLY EXCLUDES ANY LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF ANY INTERACTIVE SERVICE BY A USER IN CONTRAVENTION OF THE CONTENT STANDARDS CONTAINED HEREIN, WHETHER THE SERVICE IS MODERATED OR NOT.

 

8.         CONTENT STANDARDS

 

These content standards apply to any and all material You contribute to the Site (“Contributions”), and to any Interactive Services associated with it.

 

You must comply with the letter and spirit of the content standards set for below.  The content standards apply to each part of any Contribution as well as to Contribution taken as a whole.

 

With regard to Contributions:

 

Facts must be true and accurate;

 

Facts must be complete and must not be misleading as presented, even if the facts presented are true and accurate;

 

Opinions must be genuinely held and warranted under the facts;

 

Facts and opinions must comply with applicable law in the United States and in any country from which the Contribution is posted;

 

Contributions must not:

 

Advocate or promote any illegal activity;

 

Advocate or promote discrimination based upon race, sex, religion, nationality, disability or age;

 

Advocate or promote violence;

 

Be threatening, abuse or invade the privacy or another person or entity or organization, or likely to cause mental distress, annoyance, needless anxiety or inconvenience;

 

Be likely to harass, upset, embarrass, annoy or alarm any other person or entity or organization;

 

Contain any material which is defamatory to any person or entity or organization;

 

Contain any material which is offensive, inflammatory or hateful;

 

Contain any material which is obscene;

 

Advocate or promote sexually explicit material;

 

Infringe any patent, intellectual property, trademark, copyright, trade secret, or database right of any other person, entity or organization or wrongfully disclose or use, whether for profit or not, any legally patent, intellectual property, trademark, copyright, trade secret or confidential or proprietary information, whether in breach of a non-disclosure agreement or not, of any other person or entity or organization;

 

Be likely to defraud or deceive any person or entity or organization;

 

Be made in breach of any legal duty owed to a third-party, such as a contractual or fiduciary duty;

 

Be used to impersonate any person, or to misrepresent Your identity or affiliation with any person or entity or organization or be likely to mislead a person about Your identity or affiliation with any person or entity or organization;

 

Misrepresent that the Contribution originated or emanated from Foray Design or has the sanction or approval of Foray Design, or be likely to mislead a person about the Contribution originating or emanating from Foray Design or carrying Foray Design’s sanction or approval, if this is not the case;

 

You are prohibited from making such Contributions and also from encouraging or aiding or abetting another person or entity or organization from making such a Contribution.

 

 

 

9.         SUSPENSION AND TERMINATION

 

Foray Design will determine in its sole discretion whether a person or entity or organization has breached these Terms of Use through the person’s or entity’s or organization’s use of the Site. When it has determined that a breach has occurred, Foray Design will determine in its sole discretion what action is appropriate and will be taken. Foray Design’s determinations are final and binding.

 

Failure to comply with these Terms of Use constitutes a material breach of these Terms of Use and may result in Foray Design taking any or all of the following actions:

 

Issue a warning to You and/or the entity or organization with whom You are affiliated with or without a demand that You and/or the entity and/or the organization with whom You are affiliate correct and rectify the breach;

 

Immediate, temporary or permanent removal of any posting or material uploaded by You to the Site;

 

Suspend and/or terminate Your and/or Your affiliated entity’s or organization’s right or ability to post or upload material to the Site and/or impose conditions on such right or ability;

 

Immediate, temporary or permanent withdrawal of Your and/or Your affiliated entity’s or organization’s right or ability to use the Site for a specific purpose or for any and all purposes;

 

Institute legal proceedings against You and/or the entity or organization with whom You are affiliated for injunctive relief and/or damages, including, without limitation, for reimbursement of all costs and expenses resulting from the breach, indemnification of any liability to third-parties related in any way to the breach and for reasonable attorney’s fees and costs of litigation;

 

Report the conduct to law enforcement authorities.

 

The responses described herein are not inclusive or exhaustive. Foray Design may take other actions not described herein, as it determines in its sole discretion.

 

10.    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 other applicable law to the contrary, 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 these Terms of Use, Foray Design’s Privacy Policy, Foray Design’s 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 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 Use and Foray Design’s Terms of Sale 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 Use or Foray Design’s Terms of Sale, 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 County 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) the 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 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.

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 USE, FORAY DESIGN’S TERMS OF SALE 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; (B) FORAY DESIGN WOULD NOT HAVE PERMITTED YOU TO USE THE SITE AND/OR SOLD THE PRODUCT 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 USE OR FORAY DESIGN’S TERMS OF SALE); 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 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 Your 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, in whole or in part; 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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11.    OTHER IMPORTANT LEGAL TERMS

Notices. Notices to be made pursuant to these Terms of Use shall be sent to Foray Design 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 Use 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 Use; provided, however, that each Party acknowledges and agrees that there are Foray Design’s Privacy Policy (which is incorporated herein) and Terms of Sale between Foray Design and You and that nothing contained in this provision makes such Privacy Policy and Terms of Sale void or unenforceable.  These Terms of Use 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 Use.  

Rules of Construction. These Terms of Use shall not be strictly construed or enforced against Foray Design, and any ambiguity in any term or condition contained in these Terms of Use 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 Use or any other reason whatsoever.

Modifications and Wavier. Foray Design may modify and amend these Terms of Use 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 Use. 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 Chief Executive 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 Use or to enforce any obligation under these Terms of Use 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 Use, 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 Use 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 Use, fully or partially, without either notice to You or consent from You.

Successors and Assigns.  These Terms of Use 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.

 

12.         CHANGES TO TERMS OF USE

 

Foray Design may change these Terms of Use from time to time. It is Your responsibility to check these Terms of Use regularly to take notice of any changes Foray Design may have made to these Terms of Use.