Terms of Service
E-commerce Terms and Conditions
By visiting Frypowers.com (the “Fry Powers LLC” or “Website”) you agree to the following terms & conditions:
Please read these Terms & Conditions carefully before agreeing to be bound by the same. If you do not agree to be bound by the Terms & Conditions, do not access or use this Website. This website is provided by Fry Powers LLC. By using this Website or by placing any purchase orders using the Website, you agree to abide by the terms and conditions set forth herein. Only upon acceptance of the terms contained herein, you will be entitled to submit electronic orders. Any violation of the terms will result in termination of your account. This website is not intended for persons under 18 years of age.
Account Terms:
By registering with the Website you can access or view the prices, product inventories, and submit purchase orders electronically. You are responsible for using the Website in a private and secure manner. We will not be liable for any damage or loss caused from any unauthorized account access resulting from your actions, such as not logging out of the account or sharing your account password. We reserve the right to refuse registration or cancel an account at any time.
Acceptable Use:
You shall not do any of the following or permit any other third parties to do any of the following:
(a) Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, or profane information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, provincial, state, national or international law, including without limitation, export control laws and regulations;
(b) Post or transmit any information or software that the sender is aware contains a virus, worm, or other harmful component;
(c) Upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material which is protected by copyright or other proprietary right, without obtaining the permission of the copyright owner or right holder;
(d) Account sharing, including without limitation, letting third parties use your account and password.
Modification of these Terms & Conditions:
Fry Powers LLC reserves the right to change or modify any of the terms contained in these terms & conditions, at any time. Any such modifications or changes will immediately become effective upon posting of such changes. Your continued access or use of this Website will imply your full acceptance of the same. You are therefore responsible for regularly reviewing these Terms & Conditions and additional terms or notices posted on the Website Website.
Payment:
You agree to pay the full price for all Products you purchase from the Website. We reserve the right to charge extra charges for your credit card or PayPal account for any products purchased from the Website. You are responsible for the timely payment of all fees and for providing us with a valid credit card or PayPal account details for payment of all fees.
Errors and Inaccuracies:
Although we try to maintain accurate and current information on our site, mistakes do happen. Frypowers.com may have errors related to products' pricing and availability. We reserve the right to correct these errors, even after an order has been submitted. We will however, contact you before making any changes to your order. We apologize for any inconvenience this may cause.
Electronic Communications:
When you visit the Website or send any emails to us, you will be communicating electronically with us. By such electronic communication you agree to receive such communications from us electronically. You acknowledge that your electronic submissions constitute your agreement and your acceptance to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all transactions you enter into on the Website, and all records including notices of cancellation, policies, contracts, and applications.
Third Party Links:
For your convenience FRY POWERS LLC may provide, links to third party websites operated by other entities on the Website. If you use such third party sites, you will leave this Website. If you decide to visit any linked third party website, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. FRY POWERS LLC does not make any warranty or representation regarding, and does not endorse, any linked websites or the information appearing thereon or any of the products or services described thereon. Any third party links do not imply that FRY POWERS LLC sponsors, endorses, is affiliated or associated with any linked third party websites.
Copyright and Licenses
This Website and the entire contents contained on this Website, including but not limited to: text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, are the sole and exclusive property of FRY POWERS LLC. All such contents and materials are protected by domestic and international copyright and trademark laws. You hereby agree not to modify, copy, reproduce, republish, upload, post, transmit, or distribute any portion of the Website or any contents contained on the Website without the prior expressed written consent of FRY POWERS LLC.
License:
FRY POWERS LLC grants you a non-exclusive, non-transferable, limited license to access and make use of the contents or information available on the Website for your personal use and not to download or modify it, or any portion of it, except with the express written consent of FRY POWERS LLC. You may not reproduce, duplicate, adapt, copy, sell, resell, transmit or otherwise exploit for any commercial purpose this Website or any portion of this Website without the express written consent of FRY POWERS LLC. You agree not to interrupt or attempt to interrupt the operation of the Website in any way.
FRY POWERS LLC authorizes you to view and download the information and materials available on this Website only for your personal, non-commercial use. This authorization shall not constitute a transfer of title in and to the materials and is subject to the following restrictions: (a) you must retain, on all copies of the materials downloaded, all copyright and other proprietary notices contained in the materials; (b) you may not modify the materials in any way or reproduce or publicly display, perform, or distribute or otherwise use them for any public or commercial purpose; and (c) you must not transfer the materials to any other person unless you give them notice of, and they agree to accept, the obligations arising under these terms and conditions.
Disclaimer of Warranty/Limitation of Liablility:
THIS WEBSITE AND RELATED INFORMATION IS PROVIDED BY WEBSITE ON AN "AS IS" AND "AS AVAILABLE" BASIS. FRY POWERS LLC MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND, OR AS TO THE OPERATION OF THIS WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, FRY POWERS LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FRY POWERS LLC DOES NOT WARRANT THAT THIS WEBSITE, ITS SERVERS, OR EMAIL SENT FROM WEBSITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FRY POWERS LLC WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
WEBSITE USES REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION ON THIS WEBSITE. FRY POWERS LLC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THIS SITE. IN THE EVENT THAT A PRODUCT IS LISTED AT AN INCORRECT PRICE OR WITH OTHER INCORRECT INFORMATION, FRY POWERS LLC SHALL HAVE THE RIGHT TO REFUSE OR CANCEL ANY ORDERS PLACED FOR THE PRODUCT LISTED INCORRECTLY. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
If the foregoing limitations are held inapplicable or unenforceable for any reason, then the maximum liability of Frypowers.com to you for any type of damages shall be limited to the greater of the actual amount paid by you for any services offered on the website or U.S. $100.00.
Release and Indemnification:
You, on behalf of your successors, assigns, heirs, and personal representatives hereby irrevocably and fully release Fry Powers LLC and each of its officers, directors, employees, assigns, agents and representatives from and against any and all suits, claims, actions, causes of action, arbitration, liabilities, obligations, damages, losses, penalties or fines known or unknown, arising out of or in connection with (1) your use of this Website or (2) the use of any information accessed by you from this Website.
You agree to indemnify and hold Fry Powers LLC and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors harmless from any claim or demand, including reasonable attorneys' fees and costs of suit, made by any third party due to or arising out of (1) your use of this Website, (2) information that you submit, transmit, or otherwise make available via this Website, or (3) your breach of this Terms of Use.
You agree to indemnify, defend and hold us harmless from and against any and all liability, claims, causes of action, damages, costs and expenses, including but not limited to, attorneys' fees and costs of suit, arising out of your breach of these Terms of Use.
Applicable Law:
By visiting the Website, you agree that the laws of the state of New York City, New York USA, without regard to principals of conflict of laws, will govern these Terms & Conditions and any dispute of any sort that might arise between you and Fry Powers LLC.
Disputes:
Any dispute relating in any way to your visit or access of the Website or to the products you purchase through the Website shall be submitted to binding arbitration in New York City, New York state. Arbitration under these Terms & Conditions shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Conditions of Use shall be joined to an arbitration involving any other party subject to these Conditions of Use, whether through class arbitration proceedings or otherwise.
Other Provisions:
Fry Powers LLC's failure to insist upon or enforce strict performance of any provision of these Terms & Conditions shall not be construed as a waiver of any provision or right.
Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms & Conditions.
Fry Powers LLC may assign its rights and duties under these Terms & Conditions to any party at any time without notice to you.
If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity or enforceability of any remaining condition. Any rights not expressly granted herein are reserved.
DESIGNER TERMS AND CONDITIONS
These Fry Powers terms and conditions together with the specific terms (collectively, this “Agreement”) constitute a legally binding agreement between the Designer and Fry Powers, Inc. (FP).
Order Process:
Designer will accept all orders for any of the jewelry pieces and similar products that FP and Designer mutually agreed would be supplied by Designer and displayed on the Fry Powers (“Products”) within a seven-day window. The lead time for 1-of-a-kind pieces or custom orders is four weeks. Designer will notify FP of acceptance of an order within one business day of receipt thereof (the “Order Confirmation”) or indicate a reason in writing for rejection of an order. Any orders that are neither expressly accepted nor rejected within such one business day period will be deemed accepted as-is. Any terms or conditions of any Order Confirmation that are in addition to or inconsistent with the terms of this Agreement are void, and are hereby rejected. The issuance of an Order Confirmation means that the terms of the order have been agreed and that Designer accepts the order and agrees to be bound by the terms thereof. FP may at any time prior to Designer’s shipment of Products in an order, either cancel the order with respect to such Products, or request that Designer reschedule the delivery of any such Products to a later date.
Packaging, Delivery, and Acceptance:
Designer will package the Products for shipment in accordance with industry standards and in a manner that will adequately protect the Products from loss and damage. Products will be shipped in packaging containing a personalized message from Designer to FP’s customers, which message will be subject to FP’s prior written review and approval.
Unless otherwise agreed by the parties, delivery of all Products will be made DDP (Incoterms 2010) FP’s provided delivery point (the “Delivery Point”). The terms of DDP (Incoterms 2010) are incorporated herein by reference, except to the extent they expressly conflict with any provisions herein. Risk of loss for the Products will pass to FP at the Delivery Point. Designer will obtain sufficient insurance to cover any and all risk of loss or damage to Products shipped hereunder, and Designer will be responsible for paying all freight, handling, shipping and insurance charges to the Delivery Point, and all duties and import and export charges. Title to the Products will pass to FP upon delivery to the Delivery Point.
FP may reject any Product that is defective, not in compliance with its applicable specifications/warranties or provided in a manner inconsistent with the applicable order.
Ownership:
Subject to the grants set forth in this Agreement and as between the parties: (i) Designer owns all right, title and interest in and to the any content (photographs, editorials or other materials) provided by Designer and Designer’s Marks and any and all Intellectual Property Rights embodied therein; and (ii) FP owns all right, title and interest in and to any editorial, photography and other content provided by Fry Powers, FP’s Marks, FP’s website and applications and any and all Intellectual Property Rights embodied therein. For the purpose of this Agreement: (a) “Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing; and (b) “Marks” means the trade names, trademarks, service marks, icons, symbols and logos.
Warranties:
Designer represents and warrants that: (i) each Product will be of sufficient, industry standard quality to withstand ordinary consumer use; (ii) each Product will meet any applicable stone grading requirements and appraisal valuations; (iii) each Product will meet any additional agreed upon specifications set forth in the applicable selection sheet; (iv) each Product is an original piece; (iv) neither each Product nor any content (photographs, editorials, Designer’s Marks or other materials) provided by Designer will infringe, misappropriate or otherwise violates any Intellectual Property rights of any third party.
Indemnification:
Designer agrees, at its sole expense, to defend, indemnify and hold Fry Powers (including, its directors, officers, employees, consultants, customers and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) arising out of or resulting from: (i) any defects, failures or deficiencies of the Products, or of any documentation, certification, grading or appraisal provided by Designer related to the Products; (ii) any breach or alleged breach of this Agreement by Designer (including, but not limited to, any actual or alleged breach of any of Designer’s representations and warranties); or (iii) the death or serious bodily injury of a person as a result of the use of the Product.
Term & Termination:
The term of this Agreement will commence on the last date set forth in the signature page of the specific terms and continue for [one] year and thereafter this Agreement will automatically renew for successive [one] year periods unless this Agreement is terminated by a party no less than [60] days prior to the close of the then-current term. Either party may terminate this Agreement for cause if the other party breaches this Agreement and does not remedy such breach within [30] days after its receipt of written notice of such breach. Notwithstanding any terms to the contrary in this Agreement, FP may terminate this Agreement, for convenience, with [30] days notice to Designer. Upon termination of this Agreement: (a) Designer will fulfill all existing and accepted orders, provided that they are not cancelled by FP; (b) FP will pay Designer all sums owed hereunder, including any sums owed for orders fulfilled following the effective date of termination of this Agreement; and (c) FP’s grants will cease. Notwithstanding any terms to the contrary in this Agreement, in addition to this sentence and the following Sections will survive any termination of this Agreement: Ownership, Indemnification and General.
General:
This Agreement (Fry Powers terms and conditions together with the specific terms) is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between the parties, whether oral or written, regarding the subject matter hereof.
EXCEPT FOR DESIGNER’S REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY FP TO DESIGNER. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, FP MAKES NO WARRANTIES OR REPRESENTATIONS TO DESIGNER AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Unless required by law, neither party will disclose the specific terms and conditions of this Agreement. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on a party unless made in writing.
Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. The Terms will be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without resort to its conflict of law provisions.