Terms and Conditions
CRAFTED FLAMES TERMS & CONDITIONS OF SALE
1. ENTIRE AGREEMENT: Crafted Flames agrees to sell certain Goods (as defined below) to you (“Buyer”) on the following terms and conditions of sale (these “Terms and Conditions”), which supersede any additional or inconsistent terms of Buyer. As used herein, “Buyer” includes the contractor and the ultimate purchaser of the home or other building into which the Goods are installed. These Terms and Conditions and the order or other contract documents to which they are attached constitute the entire agreement between Crafted Flames and Buyer with respect to the Goods (collectively, this Agreement”), and the terms and conditions of this Agreement prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement. This Agreement may not be modified, amended or waived in any way except in writing signed by an authorized representative of Crafted Flames. Crafted Flames makes no representations, except for the representations set forth in these Terms and Conditions, and Buyer acknowledges and agrees that Buyer has and will not rely on any other representations.
2. GOODS: Crafted Flames sells masonry fireplaces, direct vent fireplaces, pizza ovens and other fireplace/gas products. These Terms and Conditions are not limited to specific products purchased by Buyer from Crafted Flames (the “Goods”) and apply to all products offered by Crafted Flames.
3. DELIVERY: All shipping dates are approximate. All prices are F.O.B. the location of Crafted Flames’ facility, unless otherwise specified by Crafted Flames. Acceptance of shipment by designated shipper, delivery to Buyer’s representative or designee, or delivery of an invoice to Buyer, whichever first occurs, shall constitute “Delivery.” Upon payment in full, title shall pass to Buyer. In no event shall Buyer be entitled to make any deduction from any payment due hereunder by reason of loss or damage in transit. Upon the written request of Buyer, Crafted Flames, at its sole discretion and Buyer’s expense, may agree as a service to Buyer to process Buyer’s claim against the carrier for any loss or damage in transit, provided that such claim is received by Crafted Flames within two (2) days of delivery of the Goods to Buyer. Any such claims must be accompanied by a delivery receipt, signed by carrier’s agent at time of delivery, on which receipt the loss or damage has been noted. In the absence of directions, the Goods will be shipped by the method and via the carrier selected by Crafted Flames. Delivery by truck will be made to the nearest points reasonably accessible by truck as determined by the driver. Buyer will unload and store, or furnish and pay for any necessary labor to unload and store, the Goods, and neither Crafted Flames, the carrier, nor the driver have any obligation to unload or store the Goods. Buyer shall note loss or damage on truck shipments upon the delivery ticket returned to Crafted Flames, or such claims shall be waived.
4. TERMS OF PAYMENT: Payment terms shall be as described in the applicable order, invoice or other contract documents to which these Terms and Conditions are attached; provided, however, if such payment terms are not covered in such documents, payment for the Goods are due net seven (7) days from the date of the invoice. Buyer may be required to pay a portion of the purchase price for the Goods as a deposit for certain Goods or new builders or customers whose credit has not been approved by Crafted Flames, which is due and payable upon execution of the applicable order (a “Initial Payment”). If, at any time or for any reason, Crafted Flames shall have cause to question Buyer’s ability to pay, Crafted Flames may demand such assurances of Buyer’s ability to pay as Crafted Flames shall deem necessary in its sole discretion, including payment in advance for all shipments. If Buyer fails within ten (10) days of Crafted Flames’ demand to provide Crafted Flames with such assurance, Crafted Flames shall be entitled to suspend its performance, cancel any order then outstanding, receive reimbursement for its reasonable and proper cancellation charges, and may proceed to collect, without limitation, (a) any sums due and owing, (b) its reasonable cancellation charges and (c) all damage resulting from Buyer’s default. In the event of an assignment for the benefit of Buyer’s customers or creditors, bankruptcy or insolvency of Buyer, or in the event of any proceeding brought against Buyer, voluntarily or involuntarily, under bankruptcy or any insolvency laws, Crafted Flames shall be entitled to cancel any order then outstanding at any time and shall receive reimbursement for its reasonable and proper cancellation charges. Including but not limited to a 30% restocking fee.
If Buyer fails to make payment for the Goods when due, Buyer’s account shall be deemed delinquent and Buyer shall be liable to Crafted Flames for a service charge of eighteen percent (18%) per annum or the maximum allowed by law, whichever is greater, on any unpaid amount; provided that, in addition to the foregoing, Crafted Flames shall also be entitled to (a) suspend its performance, (b) cancel any order then outstanding, (c) receive reimbursement for its reasonable and proper cancellation charges and (d) proceed to collect, without limitation, any sums due and owing, its reasonable cancellation charges, and all damage resulting from Buyer’s default. Buyer shall be liable to Crafted Flames for all costs and expenses of collection, including court costs and reasonable attorneys’ fees.
5. SECURITY INTEREST: As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Crafted Flames a lien on and security interest in and to all of the right, title and interest, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds of the foregoing). The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
6. CANCELLATIONS, CHANGES AND RETURNS: Except as otherwise provided in this Agreement, the order and purchase of the Goods under this Agreement are not subject to cancellation, change or return unless agreed to in writing by an authorized representative of Crafted Flames. At the option of Crafted Flames, Buyer may be charged for any costs incurred by Crafted Flames prior to or as a result of such cancellation, change or return. In the event of any change, Crafted Flames shall be entitled to revise its prices and delivery dates to reflect such change. Any Deposit paid to Crafted Flames is non-refundable.
7. DELAY IN OR PREVENTION OF PERFORMANCE: Crafted Flames shall not be liable for any expense, loss or damage resulting from delay in delivery or prevention of performance caused by fires, floods, storms, acts of God, strikes, labor disputes, labor shortages, lack of or inability to obtain materials, fuels, supplies or equipment, civil unrest, domestic or international acts of terrorism, riots, accidents, transportation delays, acts or failures to act of any government or of Buyer, or any other cause whatsoever, provided that such cause is beyond the reasonable control of Crafted Flames, and Crafted Flames shall have such additional time for performance as may be reasonably necessary under the circumstances and may adjust the price to reflect increases occasioned by such delay. Acceptance by Buyer of any of the Goods shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of the Goods.
8. EXCLUSIVE WARRANTY: Buyer acknowledges that Crafted Flames makes no representation or warranty with respect to the Goods, except for the representations and warranties set forth on Exhibit A, which is incorporated into this Agreement by reference.
9. LIMITATION OF WARRANTY: IF ANY GOOD IS INSTALLED OTHER THAN IN STRICT CONFORMANCE WITH THE PUBLISHED INSTALLATION INSTRUCTIONS, THE WARRANTY IS VOID AND THERE SHALL BE NO WARRANTY FOR SUCH GOOD.
10. OPERATING WARRANTY SERVICE: To obtain warranty service authorization, Buyer must contact the manufacturer of said Goods either by writing at such address as may be posted on the manufacturer’s website, within thirty (30) calendar days after Buyer purchases the Goods from Crafted Flames. Dated proof of original purchase from Crafted Flames will be required. Crafted Flames is not responsible for Goods received from Buyer without a warranty service authorization. To obtain warranty service authorization, Buyer must provide photographic evidence of the claimed defect or have the Goods inspected by an approved Crafted Flames inspector, as determined by Crafted Flames in its sole discretion. Buyer agrees to permit inspection of the Goods by an approved Crafted Flames inspector. Crafted Flames shall, at its sole discretion, decide the place of performance.
11. WARRANTY DISCLAIMER: IF THE GOODS DO NOT OPERATE AS WARRANTED PURSUANT TO THE EXPRESS
LIMITED WARRANTY IN EXHIBIT A, BUYER’S SOLE REMEDY SHALL BE THE REMEDY SET FORTH IN THE EXPRESS LIMITED WARRANTY IN EXHIBIT A. TO THE FULLEST EXTENT ALLOWED BY LAW, THE EXPRESS LIMITED WARRANTY IN EXHIBIT A IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CRAFTED FLAMES NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OF THE GOODS.
CRAFTED FLAMES SHALL NOT BE LIABLE UNDER THE WARRANTY SET FORTH IN EXHIBIT A IF ITS TESTING AND INSPECTION DISCLOSE THAT THE ALLEGED DEFECT OR MALFUNCTION IN THE GOODS DOES NOT EXIST OR WAS CAUSED BY BUYER’S OR ANY OTHER PERSON’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY THE GOODS, NORMAL WEAR AND TEAR, OR ANY OTHER CAUSE BEYOND THE RANGE OF ITS INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, OTHER HAZARDS, OR ACT OF GOD. THE WARRANTY SET FORTH IN EXHIBIT A DOES NOT APPLY WHEN THE MALFUNCTION OR DEFECT RESULTS FROM INSTALLATION OF THE GOODS OTHER THAN IN FULL COMPLIANCE WITH THE GOODS’ INSTALLATION AND SPECIFICATION MANUAL AND APPLICABLE BUILDING CODES, OR THE USE OF THE GOODS IN CONJUNCTION WITH ACCESSORIES, OTHER PRODUCTS, OR ANCILLARY OR PERIPHERAL EQUIPMENT AND CRAFTED FLAMES DETERMINES THAT THERE IS NO DEFECT WITH THE ACTUAL GOODS.
12. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT ALLOWED BY LAW, CRAFTED FLAMES ALSO EXCLUDES FOR ITSELF, ITS SUPPLIERS AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR FOR THE LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF PROPERTY, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONSEQUENCE WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE GOODS, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CRAFTED FLAMES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SALE OF THE GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID TO CRAFTED FLAMES BY BUYER FOR THE APPLICABLE GOODS SOLD HEREUNDER.
13. INDEMNIFICATION: CRAFTED FLAMES SHALL NOT BE LIABLE FOR AND BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS CRAFTED FLAMES FOR ALL LOSS, DAMAGE, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE, OR OTHER LIABILITY ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OR WILLFUL MISCONDUCT OF BUYER, ITS EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, HEIRS AND ASSIGNS.
14. TERMINATION: In addition to any remedies that may be provided under this Agreement, Crafted Flames may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. CONTROLLING LAW: This Agreement and all rights and obligations hereunder shall be governed by, and construed in accordance with, the laws of the State of Texas without regard to its conflicts of laws provisions.
16. ARBITRATION; DISPUTE RESOLUTION; PRESERVATION OF FORECLOSURE REMEDIES: All disputes, claims or controversies (individually or collectively, a “Dispute”) between Crafted Flames and Buyer arising out of, or relating to, the transactions contemplated by this Agreement, including without limitation any claim based on or arising from an alleged tort, shall be resolved by binding arbitration in accordance with Title 9 of the U.S. Code and the Commercial Arbitration Rules of the American Arbitration Association (the ”AAA”), and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The Dispute shall be arbitrated in Austin, Travis County, Texas. Defenses based on statutes of limitation and similar doctrines shall be applicable in any such proceeding, and the commencement of an arbitration proceeding under this Agreement shall be deemed the commencement of an action for such purposes. The arbitrator shall selected in accordance with the Commercial Arbitration Rules of the AAA. The AAA shall designate a panel of ten (10) potential arbitrators knowledgeable in the subject matter of the Dispute. Each Crafted Flames and Buyer shall designate, within thirty (30) days of the receipt of the list of potential arbitrators, one of the potential arbitrators to serve, and the two arbitrators so designated shall select a third arbitrator from the eight remaining candidates. Notwithstanding the foregoing, Crafted Flames reserves the right to resolve or bring any Dispute in the federal courts of the United States of America or the courts of the State of Texas in each case located in Travis County, and Buyer irrevocably submits to the exclusive jurisdiction of such courts in any such Dispute.
17. WAIVER: No waiver of any provision, right or remedy contained in this Agreement is binding on, or effective against, Crafted Flames unless expressly set forth in writing and signed by an authorized representative of Crafted Flames. Waiver by Crafted Flames of any breach shall be limited to the specific breach so waived and shall not be construed as a waiver of any subsequent breach.
18. ASSIGNMENT: Buyer may not assign this Agreement or any rights or obligations therein without the prior written consent of Crafted Flames. Any attempted assignment in contravention of this Paragraph shall be void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. Notwithstanding the foregoing, if Buyer is a contractor, Buyer may assign this Agreement to the ultimate purchaser of the home or other building into which the Goods are installed.
19. TAXES: Unless otherwise indicated in this Agreement, Crafted Flames’ prices do not include sales, use, excise or other similar taxes. Consequently, in addition to the price specified, the amount of any present or future such tax shall be paid by Buyer, or in lieu thereof, Buyer shall provide Crafted Flames with tax-exemption certificates required by the taxing authorities, at the time of sale.
20. CUMULATIVE REMEDIES: All remedies of Crafted Flames set forth herein shall be cumulative and shall be in addition to any other remedies available to Crafted Flames, whether at law, equity or otherwise.
21. SEVERABILITY: If any provision or part of a provision contained in this Agreement is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions of the Agreement shall remain in full force and effect.
22. CONSTRUCTION: No provision of this Agreement may be construed against Crafted Flames as the drafting party.
23. SURVIVAL: Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
TERMS AND CONDITIONS OF SALE EXHIBIT A: EXPRESS LIMITED WARRANTY
Crafted Flames warrants to the original Buyer (including, if the original Buyer is a contractor, the original purchaser of a new, or the current owner of an existing, home or other building into which the Goods are installed) that the Goods purchased from Crafted Flames will be free from material defects in materials, under normal use, for ten (10 years). Material defects must adversely affect safety or performance of Fireplace Goods and expressly excludes drafting, smoking, or puffing of the Fireplace Goods, which are affected by factors beyond the control of Crafted Flames. The warranty period begins on the proven date of purchase of the Goods.
Crafted Flames’ sole obligation under this express limited warranty shall be, at Crafted Flames’ discretion, option and expense, to either: (1) provide replacement Goods or part; or (2) if a replacement Goods or part is not reasonably available, refund the purchase price paid for the Goods or part. Labor charges or indirect charges for repair or replacement of the Goods or part shall be the responsibility of Buyer. Crafted Flames warrants any replaced Goods or part for a period of ninety (90) days from delivery, or through the end of the original warranty, whichever is longer. All Goods or parts that are replaced become the property of Crafted Flames. This express limited warranty does not cover hardware, footing, vents, ducting or accessories.
TO THE FULLEST EXTENT ALLOWED BY LAW, THIS EXPRESS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CRAFTED FLAMES NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY IN CONNECTION WITH THE SALE, DELIVERY, INSTALLATION, MAINTENANCE OR USE OF THE GOODS.
Color matching cannot be guaranteed. Any sample, model, description or illustration shown to or viewed by Buyer was for illustrative purposes only and shall not be deemed to create an express warranty that the Goods shall conform identically in all respects to such sample, model, description or illustration.
If you have any questions, please contact Crafted Flames at (832) 928-9623.
