Terms and Conditions of Sale
Blue Ember Technologies, LLC (“Blue Ember Technologies”) Terms and Conditions of Sale
PLEASE READ THESE TERMS AND CONDITIONS OF SALE VERY CAREFULLY.
THE TERMS AND CONDITIONS OF SALE ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE PRODUCTS AND SERVICES DESCRIBED IN BLUE EMBER TECHNOLOGIES’ INVOICE OR OTHER BLUE EMBER TECHNOLOGIES DOCUMENTATION, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF SALE UNLESS CUSTOMER AND BLUE EMBER TECHNOLOGIES HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
Important Information About These Terms and Conditions of Sale
These terms and conditions of sale constitute a binding contract between you ("Customer") and Blue Ember Technologies. Customer accepts these terms and conditions of sale by making a purchase, placing an order or otherwise shopping on Blue Ember Technologies’ Website (the "Site"). These terms and conditions of sale are subject to change without prior notice, except that the terms and conditions of sale posted on the Site at the time Customer initially places or modifies an order will govern the order in question.
These terms and conditions of sale constitute the entire agreement between Customer and Blue Ember Technologies relating to the terms and conditions of sale of products and services on the Site. Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting Blue Ember Technologies at the address provided below.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. Customer agrees that the terms and conditions of sale contained herein and in Blue Ember Technologies’ invoice or other documentation will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these terms and conditions of sale or any purchase order or invoice related thereto.
THESE TERMS AND CONDITIONS OF SALE ON THIS SITE AND ANY SALE HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT IN BALTIMORE COUNTY, MARYLAND AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN BALTIMORE COUNTY, MARYLAND AND SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING.
Title; Risk of Loss
If Customer provides Blue Ember Technologies with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for Blue Ember Technologies, title to products and risk of loss or damage during shipment passes from Blue Ember Technologies to Customer upon shipment from Blue Ember Technologies’ factory. For all other shipments, title to products and risk of loss or damage during shipment passes from Blue Ember Technologies to Customer FOB Factory. Blue Ember Technologies retains a security interest in the products until payment in full is received. Customer will be responsible for all shipping and related charges.
If this transaction involves an export under the Export Administration Regulations, the products sold or distributed under these terms and conditions of sale exported from the United States by Blue Ember Technologies were exported in accordance with the Export Administration Regulations. Diversion, use, export or re-export contrary to United States law is prohibited. The products sold or distributed under these terms and conditions of sale may not be exported or re-exported to Cuba, Iran, Iraq, Libya, Sudan, North Korea or Syria or to entities and persons that are ineligible under United States law to receive United States products. In addition, manufacturers' warranties for exported products may vary or may be null and void for products exported outside the United States.
Subject to the warranty limitation set forth below, Blue Ember Technologies warrants that the Products sold hereunder will substantially conform to the applicable specifications and will be free from defects in material and workmanship unconditionally for one (1) year after shipment FOB factory, under normal and proper use and service.
The warranty and remedies for breach of warranty provided for in these General Conditions extend only to the original product and do not cover, and Blue Ember Technologies shall not be liable for, (i) abnormal wear and tear or damage caused by improper installation, maintenance or use contrary to the instructions published by Blue Ember Technologies, (ii) storage of Products in a wet or damp area or unprotected from weather and other job conditions, (iii) any cause beyond the control of Blue Ember Technologies, including without limitation conditions caused by movement, settlement, salt, freezing/thawing of ground in which the Products are installed, fire, wind, hail, flood, lightening or other acts of God, international acts, accidents, negligence or exposure to harmful chemical pollutants or other foreign matter or energy, (iv) repair or damage caused by anyone except personnel authorized by Blue Ember Technologies, or (v) any scratches, abrasions or other damage to the finish of painted items after they leave the factory. Items repaired or replaced and designs corrected under warranty are warranted only for the remainder of the original warranty period. Any general Product literature is for illustrative purposes only and does not constitute a warranty of any kind. Purchaser accepts full responsibility for the selection of the Products to achieve intended results. THE WARRANTY SET FORTH IN THE WARRANTY SECTION IS STRICTLY LIMITED TO ITS TERMS AND IS IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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Pricing Information; Availability Disclaimer
All pricing is subject to change. Blue Ember Technologies reserves the right to make adjustments to pricing, products and service offerings for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, material price changes and errors in advertisements. All orders are subject to product availability. Therefore, Blue Ember Technologies cannot guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
NEITHER BLUE EMBER TECHNOLOGIES NOR ITS AFFILIATES WILL BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NEITHER BLUE EMBER TECHNOLOGIES NOR ITS AFFILIATES WILL BE LIABLE FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR THE PROVISION OF SERVICES BY THIRD PARTIES. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES PROVIDED BY BLUE EMBER TECHNOLOGIES OR ITS AFFILIATES, NEITHER BLUE EMBER TECHNOLOGIES NOR ITS AFFILIATES WILL BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES IN EXCESS OF THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM
Blue Ember Technologies will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency. Any shipping dates provided by Blue Ember Technologies are estimates only.
Third Party Services
Customer acknowledges and agrees that, in some instances, Blue Ember Technologies and its affiliates are resellers of services and are not the provider of those services. In those cases, the third party service provider is the only party responsible for providing services to Customer. In those cases, Customer will look solely to the third party service provider for any loss, claims or damages arising from or relating to the purchase or provision of such services. Customer hereby releases Blue Ember Technologies and its affiliates from any and all claims arising from or relating to the purchase or provision of any such services by third party service providers. Services may be subject to tax.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) arising from or relating to the products or services sold pursuant to these terms and conditions of sale, the interpretation or application of these terms and conditions of sale or the breach, termination or validity thereof, the relationships which result from these terms and conditions of sale (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or BLUE EMBER TECHNOLOGIES’ ADVERTISING AND MARKETING (COLLECTIVELY, A “CLAIM”) WILL BE RESOLVED, UPON THE ELECTION OF BLUE EMBER TECHNOLOGIES, CUSTOMER OR THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association, with offices in the State of Maryland. If arbitration is chosen by any party with respect to a Claim, neither BLUE EMBER TECHNOLOGIES nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these terms and conditions of sale, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place in the State of Maryland. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to BLUE EMBER TECHNOLOGIES arising out of sales hereunder will be exclusively litigated in court rather than through arbitration.
Orders; Payment Terms; Interest; Taxes
Orders are not binding upon Blue Ember Technologies until accepted by Blue Ember Technologies. Terms of payment are within Blue Ember Technologies’ sole discretion. All credit card orders placed online with Blue Ember Technologies are immediately billed to the customer’s credit card account. It is understood that the customer’s credit card billing precedes the production and shipment of goods and that product lead times on delivery average 3 to 5 weeks. The customer, at its discretion, may opt not to use this online ordering service and credit card billing policy and may place orders directly with Blue Ember Technologies. Customers may call Blue Ember Technologies at 410-552-9888, speak with a sales representative and discuss alternative payment terms when orders are placed other than through this service. Customer is responsible for, and will indemnify and hold Blue Ember Technologies harmless from, any applicable sales, use, transaction, excise or similar taxes (but not taxes imposed or measured by Blue Ember Technologies’ net income), and from any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of, or otherwise associated with the order. Customer must claim any exemption from such taxes, fees or charges and must provide Blue Ember Technologies with the necessary supporting documentation at the time of purchase. Any sales, use or other applicable tax or fees or assessments is based on the location to which the order is shipped. In the event of a payment default, Customer will be responsible for all of Blue Ember Technologies’ costs of collection, including court costs, filing fees and attorney’s fees.
- Purchaser’s sole and exclusive remedy, and Blue Ember Technologies’ only obligation for breach of warranty for Products furnished hereunder, shall be, at Blue Ember Technologies’ option, to repair or replace the defective item or part that fails within one year warranty period, free of charge, provided that Purchaser promptly gives notice to Blue Ember Technologies of such failure, returns such item or part to Blue Ember Technologies, freight prepaid, and upon examination Blue Ember Technologies finds such to have been defective. Purchaser must pay for related costs of making the repair or replacement, including the costs of removal, installation or reinstallation of the Products if it is determined that damage exists for any reason other than a defect in workmanship. In the event Purchaser claims that the Products are defective, it must allow Blue Ember Technologies personnel access and permission to inspect the Products at the site of installation or use.
- Return shipping address:
BLUE EMBER TECHNOLOGIES, LLC 300C South First Street – Connellsville, PA 15425
Failure to return a product within the applicable return period will be deemed to be an acceptance of the product.