TERMS OF SALE
Date Last Modified: May 14, 2012
THESE TERMS OF SALE (THESE "TERMS OF SALE") GOVERN YOUR PURCHASE OF ANY PRODUCT OFFERED BY FAWN SHOPPE (“COMPANY”, “US” OR “WE”) OR OTHERWISE SOLD THROUGH THE WEBSITE (WWW.FAWNSHOPPE.COM) OR ANY AFFILIATED WEB SITES (COLLECTIVELY, THE “WEBSITE”) OR BY TELEPHONE, FACSIMILE OR E-MAIL. PLEASE READ THESE TERMS OF SALE CAREFULLY. BY PLACING AN ORDER, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCECPTED AND AGREED TO BE BOUND BY THESE TERMS OF SALE. THESE TERMS OF SALE ARE SUBJECT TO MODIFICATION BY COMPANY WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME. YOU SHOULD PERIODICIALLY REVIEW THESE TERMS OF SALE TO ENSURE THAT YOU REMAIN UP TO DATE ON ALL SUCH CHANGES.
Availability of our products is subject to change without notice. If a product is not in stock when you place your order, we will do our best to advise you when the product will be available. The Company shall not be liable for any claims or damages arising in connection with products that are out of stock or otherwise unavailable. The Company reserves the right to discontinue the sale of any product or service at any time without notice to you or any other third party.
Prices for our products shall be our published prices for those products on the Website. We reserve the right to increase the price for any product without notice to you (provided, that we will not increase prices for products which have been previously ordered by you but not yet shipped). We are not responsible for any errors on the Website. In the event a product is listed at an incorrect price due to typographical, photographic or technical error or error in pricing information received from our suppliers, we reserve the right to refuse or cancel any orders placed for that product listed at the incorrect price.
TAXES, CUSTOMS, DUTIES
All prices on the Website are net of any sales, use, excise, value added and similar taxes imposed by any governmental authority regardless of how denominated. You shall pay all such taxes or charges or provide us with a tax or levy exemption certificate acceptable to the applicable taxing or levying authority. You shall also pay all customs or duties charges levied by the destination country in connection with international shipments. In the event we are required to pay any taxes or other charges for which you are responsible, you shall promptly repay these amounts to us immediately upon receipt of our invoice.
We accept payment by various credit cards listed at the Website from time to time. Your credit card will be charged at the time any order is placed or, at Company’s discretion, at a later date. You hereby authorize Company to charge any credit card you may have on file with us for the full amount of the charges owing by you for any products purchased from us or at the Website. You agree not to withhold from or offset against any amount owing to us for any reason. You also agree to address any and all product and/or transaction claims solely with us and not to initiate, under any set of circumstances, charge refusals or charge-backs with credit card issuers, and you agree to indemnify us for any expenses or damages we may suffer on account the initiation by you of any such charge refusal or charge-back. In addition to our other rights, we reserve the right to cancel or suspend delivery of all or part of an order if you are delinquent in any payments owing to us. You agree to pay, in connection with any past due balance, (i) a late payment charge of 1½ percent per month, but not in excess of the lawful maximum, and (ii) all costs incurred by us in collecting such past due balance, including, without limitation, court and arbitration costs and attorney’s fees.
All products are shipped as described in the Shipping section on the Website. The terms of the Shipping section constitute part of the terms and conditions contained in this Terms of Sale, which you are hereby agreeing to. Shipping dates are approximate and shipping costs are as posted on the Website in connection with your order. It is your responsibility to provide accurate contact information that allows the shipper to contact you when shipment is made. We shall make every reasonable effort to meet your specified delivery date, but in no case shall we be liable to you if we are unable to meet such date. We may make deliveries piecemeal or in installments. Title and risk of loss transfer to you at the time we deliver any product you purchase to the applicable common carrier. You will be responsible for all shipping and related charges in the event you refuse a shipment for any reason.
You are entitled to return any product purchased through the Website which is unopened, unaltered (which includes removing any tags or labels), undamaged and unused by you or any other third party, and which remains in its original packaging, so long as (i) you include any receipts or other purchase documentation with such return, and (ii) the product to be returned is delivered by courier with an applicable tracking number for shipping to us no later than 10 calendar days from the date you received the applicable product(s). You will be responsible for return shipping costs unless we shipped an incorrect or damaged product to you. We do not offer exchanges, and we do not accept returns of bedding, dishware, soft toys, hair accessories, underwear, socks, or tights. All returnable items may be returned for store credit only. Returns must be sent to the address posted at the Website from time to time for returns.
You shall purchase products through the Website solely for your own use and not for resale. You agree to indemnify and hold us harmless from any claims asserted by a third party, regardless of the theory under which such claim is asserted, arising out of the resale or distribution of any products or materials by you. Also, you are not authorized to use any of our trademarks or trade names or those of our manufacturers or suppliers without our or their consents, as the case may be.
You hereby recognize Fawn Shoppe's intellectual property rights in its name, the Website and all other intellectual property owned by Fawn Shoppe, and nothing herein shall be deemed to assign ownership of any such intellectual property to you. You will not reverse-engineer or use any product to develop similar products or materials to those purchased from the Website.
WE MAKE NO WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY PRODUCT, OR AS TO THE ACCURACY OF ANY CONTENT IN ANY COMPANY LITERATURE OR POSTED ON THE WEBSITE. Our products are not reviewed or approved by the U.S. Food and Drug Administration, the Federal Trade Commission or any other governmental body. We make no representations or warranties regarding the durability, exact color or any similar aspect of any products sold through the Website. Our sole obligation in respect of defective products and your exclusive rights under our warranty are limited, at our option, to replace the products, or to refund the purchase price paid by you for the affected products.
USE OF PRODUCTS
Further to the disclaimer set forth above, Company makes no representations or warranties whatsoever as to the results you may obtain by using any product purchased from the Website. You acknowledge that products purchased at the Website are used at your sole risk, and Company shall not be liable in any way on account of your dissatisfaction with the results achieved from any such use or any injuries resulting therefrom.
UNAUTHORIZED USE OF PRODUCTS
The Company shall not be liable for any claims, damages or injuries caused by your negligence, the misuse of any of our products by you or any third party to which you provide access to our products, or any other damages or injuries arising out of your use of any of the products sold through the Website.
LIMITATION OF LIABILITY
NONE OF THE COMPANY, ITS EQUITY HOLDERS, ITS MANUFACTURERS OR SUPPLIERS SHALL BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, PROCUREMENT COSTS, OR BUSINESS INTERRUPTION COSTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE THEORY UPON WHICH ANY SUCH CLAIM IS BASED.
IN NO EVENT WILL WE, OUR MANUFACTURERS, OUR AFFILIATES OR OUR EQUITY HOLDERS BE LIABLE TO YOU FOR ANY DAMAGES IN EXCESS OF (X) THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO ANY CLAIM REGARDLESS OF THE THEORY UNDER WHICH SUCH CLAIM IS ASSERTED, OR (Y) FOR ALL OTHER TYPES OF CLAIMS, THE AGGREGATE AMOUNT PAID BY YOU TO US DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
The collective limitations on our liability under these Terms of Sale apply also to our suppliers who are intended beneficiaries of these limitations.
Except for payment obligations, neither of us shall be liable for any failure to perform due to causes beyond our reasonable control, respectively, including but not limited to acts of God or nature, war, fire, bad weather, flood, accident, labor trouble or shortage, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed practicable by the party affected) any raw materials (including energy), equipment or transportation. The time for performance shall be extended by the period of the applicable force majeure event.
You hereby recognize Company’s intellectual property rights in its name, the Website, all products sold through the Website and all other intellectual property owned by Company, and nothing herein shall be deemed to assign ownership of any such intellectual property to you. Our intellectual property may include, but is not limited to, patents, patent applications, copyrights (including drawings, prints, manuals and specifications), trademarks and service marks (registered or unregistered) and applications thereof, "trade dress", and technical, proprietary and confidential information. You affirm that you are obtaining the products sold through the Website for use as intended.
You may not assign these Terms of Sale, by operation of law or otherwise, without our prior written consent. Any assignment attempted in violation of this provision shall be void and of no legal effect.
REPRESENTATIONS AND WARANTEES
These terms and conditions shall be governed and construed in accordance with the laws of the state of New York excluding its choice of law provisions. The United Nations Convention for the International Sale of Goods shall not apply.
We agree to attempt to resolve any disputes amicably through our respective representatives. If, after thirty (30) days we are unable to do so, then we each agree that any claim or controversy of any sort relating to our agreement shall be determined by arbitration in New York, before one arbitrator. At the option of the first to commence an arbitration, the arbitration shall be administered either by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, or by the American Arbitration Association pursuant to its Commercial Arbitration Rules. The arbitrator shall have no power to add to, delete from or modify these Terms of Sale. Each of us shall have the right to conduct discovery to which we would be entitled had the dispute been resolved in a state court of general jurisdiction in New York. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude either of us from seeking provisional remedies in New York in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, as part of the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. Notwithstanding the foregoing, in addition to our rights set forth above, we may initiate proceedings directly in the appropriate court located in New York in connection with any claim to collect amounts due and owing by you.
These Terms of Sale represent our entire agreement with respect to your order. No modification or amendment or waiver of rights will be effective except in a written document signed by both of us. Waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. We reserve the right to alter or change these Terms of Sale at any time with respect to future orders that you may place with us.
If any provision of these Terms of Sale are held illegal, unenforceable or in conflict with any law by a court of competent jurisdiction or arbitral tribunal, such provision shall be deemed severed from these Terms of Sale and the validity of the remainder of these Terms of Sale shall not be affected thereby.