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Terms and Conditions

 

GENERAL TERMS AND CONDITIONS OF SALE

 

1.            SCOPE OF APPLICATION

1.1            These General Terms and Conditions (these “Terms”) are applicable to all customers (collectively, the “BUYERS” and, individually, the “BUYER”) of Falken Design Corporation, a Delaware corporation, with its principal address at 2 Prince St, Suite 3006, Brooklyn, NY 11201, United States of America (the “SELLER”) and all products (the “Products”) and the services associated with them are sold strictly pursuant to these Terms.  These Terms shall apply to all orders submitted to the SELLER and supersede any different or additional terms in any purchase orders submitted by the BUYER; any such different or additional terms are hereby rejected and are void unless SELLER has explicitly agreed in writing to such additional terms either by offering such additional or different terms in its purchase proposal or by explicitly acknowledging the different terms proposed by the BUYER in writing.

1.2            Acceptance by BUYER of Product(s) or services or payment for same shall constitute unequivocal acceptance of these Terms.  None of any past practice, industry standards, course of dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein.

2.            OFFER AND ACCEPTANCE

2.1            Offers to sell Products and/or services by SELLER are non-binding with respect to price, quantity, delivery time and possibility.

2.2            Purchase orders from BUYER shall be in writing and shall only be deemed accepted by the SELLER if a written and signed confirmation of order and invoice (collectively “Invoice”) confirming acceptance of the purchase order is delivered by the SELLER and/or the Products are delivered.  In the event that the Invoice deviates with regard to the Products ordered, Product price, manufacturing dates or delivery schedule, such changes shall be deemed accepted by the BUYER if the BUYER does not object by fax or e-mail within five (5) days of transmission of such order confirmation.

2.3            Any specifications, dimensions, information, figures, measurements, statements, descriptions, illustrations, photographs, drawings, or any other matters contained in the SELLER’s quotes, brochures, catalogs, price lists, or advertising literature, or any samples provided to BUYER by SELLER are not guaranteed to be accurate and are intended merely to represent a general description or depiction of the Products and shall not form part of any contract or agreement between the SELLER and the BUYER, unless expressly specified and incorporated into any contract or agreement between the parties in writing.

3.            PRICES

3.1            Unless otherwise agreed upon in writing, the BUYER shall purchase the Products for its own account.  Prices offered are quoted in U.S. Dollars.  Such prices do not include shipping and handling, expedited service, or sales taxes, if applicable, which will be added to BUYER’S total invoice price (the “Purchase Price”).  BUYER is responsible for any shipping and handling charges and state and local sales or use taxes that may apply to the order. If the amount BUYER pays for an item is obviously incorrect, regardless of whether it is an error in a price posted on the SELLER’s website or otherwise communicated to BUYER, then we reserve the right, at our sole discretion, to cancel your order and refund to you the amount that you paid. This policy will apply regardless of how the error occurred.

3.2            Should there be a general increase in SELLER’S prices due to increases of costs for material and labor in the period between the effective date of the written confirmation and delivery, then the prices valid on the day of delivery shall be applied.  In the case of such a general increase in prices, BUYER may cancel the order without further obligation within thirty (30) days after the announcement of such general price increase.

4.            PAYMENT

4.1            Unless otherwise stated on the invoice, payment is due upon acceptance of the order by the SELLER.

4.2            SELLER does not accept checks, drafts, or money orders.  SELLER accepts major credit cards. BUYER will bear all costs associated with a disputed credit card charge which results in action from SELLER' merchant account provider, otherwise known as "chargebacks.”

4.3            SELLER reserves the right to use payments for the settlement of the oldest due Invoice items plus any accrued default interest and costs and such payments shall be applied in the following order:  costs, interest and outstanding balance.

4.4            The non-payment of the Purchase Price on the Invoice due date shall be a default under these Terms.  All cost for collecting unpaid accounts shall be the responsibility of the BUYER.

4.5            In the event of a payment default by BUYER, SELLER shall be entitled to receive interest on the defaulted payment at a rate equal to eighteen percent (18%) per annum or the maximum interest rate permitted by law.  The specification or charging of interest shall not be deemed an agreement to extend credit. Any delay of the payment of the Purchase Price or any part thereof shall delay Delivery as set out below and for custom-made orders or special design might also delay the manufacturing by the same time period. If the BUYER shall have failed to pay any Invoice for Products for more than thirty (30) days, the SELLER may refuse to complete orders which have been or will be placed with the SELLER until such outstanding amounts and any interest on such outstanding amounts owing to the SELLER have been paid in full. Notwithstanding the foregoing, the SELLER shall be entitled to all other available remedies at law or in equity, including but not limited to the right to sell the Products to third parties.

4.6            If in the sole judgment of SELLER, BUYER’s financial ability to perform under these Terms is diminished, then SELLER shall have the right, among any other right or remedy, to change payment terms, require full or partial advance payment or to cancel any outstanding order, without liability.

4.7            Unless previously approved in writing by the SELLER, the BUYER shall have no right to any deductions, set-offs or to withhold payment for any reason whatsoever.

5.            DELIVERY

5.1            Delivery shall be in accordance with the terms and conditions of the delivery clause of the applicable sales invoice.

5.2            Placing the Products at the disposal of the carrier shall constitute delivery (“Delivery”) to the BUYER, whereupon risk of loss, damage or destruction (the “Risk”) is transferred to the BUYER.

5.3            Unless otherwise specified in writing, packing shall be SELLER’s standard packing.

5.4            SELLER shall endeavor to punctually deliver the Products, provided, however, all specified delivery dates refer to the completion of manufacture and availability for shipment and merely represent SELLER’s best estimates.  SELLER reserves the right to modify the delivery dates with notice to BUYER and BUYER acknowledges that fixed delivery deadlines do not exist.  BUYER also acknowledges that SELLER’s performance herein is subject to correct and punctual supply of SELLER by its suppliers.

5.5            BUYER warrants there will be no diversion of any shipment that is (a) contrary to any applicable law, or (b) for shipment or use outside of the United States, unless approved in writing by SELLER, and if so approved, BUYER warrants it will comply with all applicable laws, restrictions and regulations of the U.S. and other governments, including without limitation, the Export Administration Regulations, as amended, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the Office of Foreign Asset Control Regulations.

5.6            NOTWITHSTANDING DELIVERY AND THE PASSING OF RISK IN THE PRODUCTS, OR ANY OTHER PROVISION OF THESE TERMS, TITLE TO THE PRODUCTS SHALL REMAIN WITH THE SELLER AND SHALL PASS ONLY WHEN (i) THE BUYER HAS FULFILLED ITS OBLIGATION TO TIMELY TAKE THE PRODUCTS IN ACCORDANCE WITH THE TERMS AGREED BETWEEN THE SELLER AND THE BUYER AND SPECIFIED IN THE SELLER’S INVOICE; AND (ii) SELLER HAS RECEIVED IN CASH OR CLEARED FUNDS PAYMENT IN FULL OF THE PURCHASE PRICE OF THE PRODUCTS PLUS ANY OTHER COSTS, EXPENSES, FEES OR CHARGES WHATSOEVER WHICH ARE THEN DUE FROM BUYER TO SELLER.

5.7            The BUYER shall be obligated to inspect the Products immediately upon Delivery to determine whether such Products are in compliance with the specifications and free from defects in materials and workmanship. The BUYER is obligated to examine every delivery in every respect for any discoverable lack of conformity with the purchase order.

5.8            If the BUYER does not notify the SELLER in writing within five (5) days after receipt of the Products at the delivery point that the Products are defective or otherwise non-conforming with the purchase order, specifying the manner in which such items are non-conforming, defective or damaged, then the Products shall be deemed to have been accepted by the BUYER and the BUYER shall no longer have the right to reject the Products in whole or in part for defects which could have been discovered during diligent inspection at the time of Delivery in accordance with these Terms.

6.            Default in Acceptance

6.1            If the BUYER refuses or fails to take or accept Delivery of the Products when they have been placed at his disposal at the agreed time of Delivery, the BUYER is in default of its acceptance.

6.2            If acceptance of the Products is postponed at the request of the BUYER or due to circumstances for which the BUYER is responsible, the Products will be deemed to have been delivered and the Risk shall be transferred to the BUYER as of the day the SELLER has tendered Delivery.  Payment of any outstanding balance shall be due immediately.

6.3            If the BUYER contrary to the agreed upon conditions does not take or accept Delivery of the Products or if the BUYER requests delayed Delivery, then without limiting any other right or remedy available to the SELLER, the SELLER shall have the right to forward the Product to a storage facility or store it itself until actual Delivery or sale, and charge the BUYER for all related costs and expenses including, without limitation, storage and insurance.

6.4            If the BUYER does not accept Delivery after the expiration of a reasonable cure period to accept Delivery, the SELLER shall be entitled without prejudice to its other rights and remedies under the purchase agreement between the SELLER and the BUYER (the “Purchase Agreement”), following written notice to the BUYER, to sell the Products otherwise and to shall have a the right to be reimbursed for any expenses and lost profits in connection herewith.

6.5            Delivery Dates. Any Delivery dates indicated in the delivery schedules issued by the SELLER or the Invoice, as the case may be, are estimates only. They do not operate to bind the SELLER to ship or deliver the Products on the dates indicated unless specifically so stated in writing to be binding.

7.            SHIPPING

7.1            SELLER reserves the right to choose the shipping route and the mode of transport.  Additional costs resulting from special shipping requests by BUYER shall be for BUYER’s account.  In addition, BUYER shall be responsible for the payment of increases in freight rates, possible additional costs for diversion, storage costs etc. which occur after the sales invoice has been issued, insofar as freight-paid delivery has not previously been agreed upon by the parties.

7.2            BUYER shall assert claims arising from damages in transit directly against the carrier and shall have no recourse against SELLER for such damages.  Unless otherwise agreed in writing, BUYER shall be responsible for the observation of legal and official regulations relating to the import, transportation, storage and use of the Products.

7.3            If the Products are not shipped within thirty (30) days after notification to the BUYER that they are ready for shipping, for any reason beyond SELLER’s reasonable control, including the BUYER’s failure to give shipping instructions, SELLER may store the Products at the BUYER’s sole risk in a warehouse or storage facility or upon SELLER’s premises and the BUYER shall pay all handling, transportation and storage costs upon submission of invoices therefore.

7.4            The SELLER shall have the right to make partial shipments and to submit separate Invoices to the BUYER for each shipment.

8.            INSTALLATION SERVICE

8.1            Unless agreed otherwise in writing by both Parties, installation services, including but not limited to reinstallation services following a warranty repair, (“Services”) for Products are not included in the price for the Products and are subject to SELLER’s prices for Services in effect from time to time. 

8.2            If Services by SELLER are interrupted and/or delayed due to circumstances beyond the SELLER’s sole control, BUYER shall be responsible for any over-time and/or travel expenses of SELLER.

9.            RETURNS AND CANCELLATIONS

9.1            BUYER may return or exchange Products within 60 days of purchase.  For online returns or exchanges BUYER must first obtain a written Return Material Authorization Number (“RMA”) from SELLER.  Products for which BUYER obtained a RMA must be returned in accordance with the instructions on the RMA form provided by SELLER and within ten (10) days of receiving the RMA Number.  The RMA form must be included with all authorized return shipments and BUYER is responsible for the costs of shipment.  Products returned without an RMA Number will be rejected by SELLER.  Receipt or inspection of returned Products by SELLER shall not be deemed an admission of any alleged defect or acceptance of a warranty claim.  All repaired or replaced Products will be shipped to BUYER at BUYER’s expense.  All returns and exchanges must be new, unused and in original packaging, with exceptions for defective merchandise and products.  SELLER reserves the right to refuse or limit returns and exchanges.

9.2            Sales on special design or custom-made Products are final and special design or custom-made Products cannot be returned or exchanged.

9.3            BUYER may not cancel any orders without the express written consent of SELLER, which SELLER may withhold in its sole discretion.  Cancellations may be subject to a restocking fee of twenty five percent (25%) of the original Purchase Price.  BUYER is responsible for all shipping charges in connection with canceled orders. 

10.            Disclaimer of Warranties

10.1            BUYER HEREBY WAIVES ALL OTHER REMEDIES, WARRANTIES, GUARANTEES OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WHETHER OR NOT OCCASIONED BY THE NEGLIGENCE OF SELLER. BUYER ACKNOWLEDGES BY HIS/HER USE OF SELLER’ PRODUCTS THAT BUYER’S USE OF THE PRODUCTS AND ANY RELIANCE UPON THEM IS AT BUYER’S SOLE RISK, AND THAT BUYER ASSUMES FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT BUYER USES IN CONNECTION WITH SELLER’S' PRODUCTS. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THESE LIMITATIONS MAY NOT APPLY TO BUYER. THE WARRANTIES SET FORTH HEREIN GIVE BUYER SPECIFIC LEGAL RIGHTS AND BUYER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. IF AN ITEM HAS BEEN PURCHASED FOR CONSUMER USE AS DEFINED BY 15 U.S.C. § 2301, ANY IMPLIED WARRANTY OR WARRANTIES SHALL EXPIRE ON EXPIRATION OF ANY EXPRESS WARRANTY.

10.2            If the SELLER delivers a Product made in accordance to drawings or specific details etc. by the BUYER, the BUYER bears the risk that the Products can be used for the intended purpose

10.3            Any suggestions by SELLER or SELLER’s agents regarding use, application or suitability of Products shall not be construed as an express warranty unless confirmed to be such in writing by SELLER. 

10.4            BUYER assumes all risk for misuse of the Products.           

11.            Waiver and Limitation of Liability

11.1            SELLER HAS PRICED ITS PRODUCTS UPON THE UNDERSTANDING, AND BUYER HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT SELLER WILL NOT BE LIABLE FOR PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM THE IMPROPER HANDLING, MODIFICATION, MISUSE OF THE PRODUCTS BY THE BUYER OR ANY OTHER PERSON FOLLOWING DELIVERY BY THE SELLER.  IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE TO ANY PERSON FOR ANY FORM OF CONSEQUENTIAL, INCIDENTAL, STATUTORY, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES OF WHATEVER KIND OR TYPE ARISING FROM ANY TYPE OF COMMERCIAL, BUSINESS, ENVIRONMENTAL, TORT, WARRANTY, CONTRACT, STRICT LIABILITY OR OTHER CAUSES ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY PRODUCT AND/OR ITS USE, EXCEPT CONSEQUENTIAL DAMAGES FOR ANY INJURY TO A PERSON IN THE CASE OF PRODUCTS PURCHASED FOR CONSUMER USE AS DEFINED BY 15 US C. § 2301.  BUYER AGREES NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST SELLER ARISING OUT OF BUYER’S PURCHASE OR USE OF PRODUCTS.

11.2            THE BUYER MAY NOT BRING ANY ACTION ARISING OUT OF OR IN CONNECTION WITH ANY TRANSACTION COVERED BY THESE TERMS UNLESS SUCH ACTION IS COMMENCED WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.

12.            SAFETY STANDARDS

12.1            The BUYER shall comply with all laws, rules, regulations and industry standards existing with respect to the Products and the performance by the BUYER of its obligations hereunder in the jurisdictions where the BUYER carries on activities under these Terms and where Products are resold or distributed from time to time.  The BUYER shall not export the Products unless such export complies with any applicable export laws and regulations; resellers shall be obligated to obtain export authorization from the SELLER in writing prior to export.

12.2            The BUYER shall follow all instructions and heed all warnings accompanying any Products and understand the product performance of each Product.  Products are not suitable for children and must be handled with care and used carefully and with adult supervision. 

13.            PROPRIETARY INFORMATION / CONFIDENTIALITY

13.1            The Buyer hereby recognizes the SELLER’s absolute right, title and interest in all patents, trademarks, trade names, logos, copyrights and all other proprietary interest incorporated as any part of either the Products or other material received from the SELLER.  BUYER may not reproduce or distribute such information except to BUYER’s employees who are required to have such information in order to perform their duties and agree, in writing, to keep such information confidential. 

13.2            The BUYER acknowledges that the SELLER would be irrevocably damaged if the know-how, trade secrets, patentable and unpatentable designs, specifications and inventions, and other technical and manufacturing information and any information relating to the SELLER’s customers, accounts, sales, business, operations and affairs pertaining to or in any way relating to the Products which are made available to the BUYER by the SELLER (hereinafter called “Confidential Information”) were disclosed to or utilized on behalf of any person, firm or business entity which competes or may compete with the SELLER. The BUYER agrees that it will hold and use the Confidential Information in the same manner as it deals with its own confidential information and trade secrets, and that it will not divulge nor permit any of its employees, agents or authorized representatives to divulge any Confidential Information to any other person, firm or business entity, and the BUYER shall further restrict circulation of the Confidential Information within its organization except to the extent necessary to fulfill the purposes of the Purchase Agreement. The BUYER agrees that it will not use the Confidential Information in any way which is adverse to the interest of the SELLER or inconsistent with these Terms.  All such information supplied by SELLER shall be received in confidence except for information that (a) was generally available to the BUYER from public or published sources, provided publication did not take place in violation of these Terms or through fault or omission of the BUYER, (b) was lawfully obtained from a source under no obligation of confidentiality, directly or indirectly, to either the BUYER or the SELLER, or (c) was disclosed to the general public with the written approval of the SELLER, and BUYER shall exercise due diligence and reasonable care to hold such information in confidence.

14.            EQUITABLE OR INJUNCTIVE RELIEF

BUYER understands and agrees that SELLER will not have adequate remedy at law for the material breach or threatened breach whenever BUYER, or its, agents, employees, representatives or subcontractors, attempts to use or dispose of any Confidential Information or to manufacture or produce any of the Products or any products which incorporate or relate to the Confidential Information in a manner contrary to these Terms, or otherwise breaches the obligations of Section 13 of these Terms or when such an attempt, act or breach appears imminent, the SELLER shall in addition to (but not in substitution for) the other remedies which may be available to it either at law or in equity, be entitled to equitable or injunctive relief to restrain the BUYER, its employees, agents, authorized representatives or any other person participating in such present or threatened attempt, act or breach, and shall be entitled to pursue any other remedies available at law or in equity for such present or threatened attempt, act or breach, including, without limitation, the recovery of damages.

15.            FORCE MAJEURE

15.1            If performance by the SELLER is prevented, hindered, delayed or otherwise made impracticable by reason of any loss, damage, delay or lack of delivery arising from fire; strikes, lockouts, injunction or other labor troubles, governmental intervention including, but not limited to, prohibition or extraordinary taxation upon import or export; war; riots; acts of terrorism; explosion; weather; flood; acts of God or nature; inability to obtain on terms acceptable to SELLER or shortage of, fuel, power, raw materials, labor, containers or transportation; accident; breakage of machinery or other apparatus; disruption of normal supplier channels of distribution; or any other act or force beyond the control of the SELLER, the SELLER shall be excused from performance to the extent that the SELLER is prevented, hindered or delayed by these causes.

15.2            If, as a result of any of the disruptions listed in the immediately preceding Section 9.1, the Delivery or acceptance of the Product is delayed by more than ninety (90) days, then either party may upon notice cancel the applicable Purchase Agreement and terminate any further obligation to the other party.

15.3            SELLER reserves the right to allocate and fairly apportion Product(s) among its internal and external customers during force majeure events in any manner SELLER, in its sole discretion, deems appropriate.

15.4            SELLER shall have no obligation to acquire by purchase or otherwise any Product(s) that SELLER is unable to supply to BUYER due to force majeure events.

16.            GOVERNING LAW; ARBITRATION 

16.1            THESE TERM SHALL BE CONSTRUED, INTERPRETED AND CONTROLLED BY THE LAWS OF THE STATE OF NEW YORK, AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE PARTIES’ RELATIONSHIP CREATED BY THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE GOVERNED AND DECIDED PURSUANT TO THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS.

[16.2            All disputes arising under these Terms shall be settled by final and binding arbitration in New York, New York in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect.  The parties may agree on the selection of a single arbitrator, but in the event that they cannot agree, each party shall select an arbitrator and the two selected arbitrators shall select a third arbitrator.  The award by the arbitrator(s) shall be final and judgment upon the rendered award may be entered in any court having jurisdiction thereof.]

17.            ADDITIONAL TERMS

17.1            These Terms may not be assigned by either party to any other party without the prior written consent of the other party hereto; provided, however, that (a) SELLER may assign its rights and obligations hereunder to any Affiliate of SELLER by written notice to BUYER.  These Terms shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns.

17.2            BUYER represents and warrants that (a) it understands the nature and characteristics of the Product(s), (b) it will adequately instruct in the proper safe use and handling of the Product(s), (c) it is not relying upon any representation, statement or other assertion made by SELLER or its representatives or agents, with respect to the suitability of the Product(s) for any purpose and that BUYER has made its own independent inquiry and has formed an independent opinion concerning the suitability of the Product(s) for the end use, conversion or application intended, and (d) it will not assert any claim against SELLER or hold SELLER liable, with respect to any information, testing or design furnished, or failure to be furnished, by SELLER, including, without limitation, technical advice or recommendations.  SELLER assumes no obligation or liability for the use by BUYER of any technical assistance rendered incident to these Terms.  Before working with the Products, BUYER agrees to read and become familiar with the available information on the Product’s, proper use, and handling.  Additional information is available from SELLER upon request. 

17.3            No type of contractual obligation between BUYER and its customer(s) shall be applicable to, or create any liability with respect to SELLER, whether via “pass-through”, “flow-down” or otherwise, and BUYER shall not otherwise represent to its customer(s) such purported SELLER liability.  BUYER agrees to indemnify and hold harmless the SELLER and the SELLER’s officers, directors, employees, suppliers and agents (each a “SELLER Indemnified Person”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments of any kind whatsoever (including all reasonable legal and attorneys’ fees and expenses) to which a SELLER Indemnified Person may become subject out of claims by anyone including but not limited to the BUYER’s customers or any third party, related to or arising out of any damages sustained by such party which are not caused by any defects of the Products.

17.4            SELLER may, but is not obligated to, insure the Products sold hereunder against damage or loss during (a) transportation, and (b) if shipping is delayed by reasons beyond the reasonable control of the SELLER during this delay at the expense of BUYER unless the parties have agreed otherwise.  Until final payment is made BUYER shall insure such Products at its expense for the benefit of SELLER against damages and loss including, but not limited to, fire and flood, and shall provide written proof thereof to SELLER.

17.5            SELLER assumes no liability as to any patent or copyright infringement by virtue of the use of the Products in combination with other goods or services, or the use of the Products manufactured to Buyer’s specifications.  Buyer shall not use SELLER’S trademarks without SELLER’S prior written consent.

17.6            Any notices to be give to SELLER pursuant to these terms and conditions should be sent to Falken Design Corporation, 2 Prince St, Suite 3006, Brooklyn, NY 11201, Telefax (718) 522 5848.

17.7            If any provision of these Terms is held invalid or unenforceable, such provision shall thereupon be deemed modified only to the extent necessary to render the same valid or eliminated from these Terms, as the situation may require, and these Terms shall be enforced and construed as if such provision had been included herein as so modified or eliminated, as the case may be.

17.8            Failure of SELLER to effect, or any delay by SELLER to effect, any available right or remedy shall not be construed to operate as a waiver of same.

17.9            Except as otherwise expressly provided, these Terms supersedes all prior agreements, understandings or otherwise, whether oral or written, between BUYER and SELLER concerning the subject matter of these Terms.

17.10            SELLER’S acceptance of (a) payment, or (b) specially endorsed checks shall not waive or limit any right or remedy of SELLER.

17.11            Nothing contained herein is intended nor shall be construed as creating a partnership, joint venture, agency, distributorship or any other relationship except buyer and seller.

17.12            All headings herein are for reference only.

 

October 2013

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