Ember Haus: TERMS AND CONDITIONS OF SALE AND DELIVERY
ACCEPTANCE OF TERMS AND CONDITIONS: These Terms and Conditions of Sale and Delivery (“Agreement“) govern all sales and deliveries by Ember Haus (“Ember Haus” or “we”) to the customer (“Buyer” or “you”). All other terms and conditions, including, without limitation, those terms and conditions contained in any purchase order(s) which are different from, in addition to, conflict with, or that vary the terms hereof are hereby rejected and shall not be binding on Ember Haus unless specifically accepted in writing.
WHOLESALE ONLY: We sell only to the wholesale trade. By submitting an order you are warranting that you are a valid retail business, that you are making wholesale tax-exempt purchases for resale, and that you agree to be bound by this Agreement. We reserve the right to cancel orders or terminate relationships in our sole discretion.
PAYMENT: For current and active customers located in the United States, we offer “Net 30” payment terms provided we have previously received and approved a credit application, and that you continue in good standing with us. For other customers, and all new customers, we require a 50% deposit using a valid Visa, MasterCard or American Express credit card. Please contact our office for opening order minimums. There is no minimum for subsequent orders. The balance, plus shipping costs, will be due prior to shipment. Delinquent Net 30 accounts automatically revert to mandatory credit card payment only for a minimum of six (6) months. All past due accounts accrue interest at a monthly rate of 1.5% (18% per annum), and returned checks incur a $30.00 fee. All accounts are payable without setoff or deduction. You agree to pay all costs of collection, including costs of litigation and reasonable attorney’s fees.
SHIPPING: When you place an order, we will give you an estimated completion date. When your order is nearing completion, we will notify you when we will ship. All shipping charges are calculated prior to shipping; risk of loss and damage shall pass to Buyer when products are delivered to carrier. Shipping charges may be added to your invoice prior to shipping. We encourage you to count all packages and sign only for the exact number of packages received, and inspect all items for damage prior to signing. Signature of receipt by your agent or employee constitutes full acceptance of all packages stated on the bill of lading or electronic clipboard in undamaged condition. You are responsible for all shipping and return charges for any shipment that is refused. We shall not be liable for delay in shipment for any cause, nor shall any delay entitle you to cancel any order after it has shipped or refuse delivery. You agree that the shipping address on the reverse side or otherwise provided to Napa in writing is a valid shipping address for your retail business. We will “drop ship” to your customer(s). Delivery may occur in multiple lots depending upon availability of the products constituting an order. Items which you prefer we ship together must be noted in writing at the time you place your order. Any item not ready by the estimated completion date will automatically be backordered; if you do not want merchandise that is backordered you must cancel it no less than 60 days prior to shipment.
GUARANTY/RETURNS: We ship items that conform to the examples we display at wholesale trade shows, on our website, and in our showroom. We do not ship substitutions without your consent; however, you understand that it is the inherent nature of reclaimed products, older materials and certain furnishings to appear weathered, and to contain variations and imperfections, including with respect to size, color, paint formulation, hue and patina, and that natural variations occur in the color of all products. Our products are guaranteed for six (6) months from date of delivery against defects in material and workmanship that materially impair the use of the product. You agree (a) to fully examine goods upon delivery, (b) not to deduct any claim for damage or for defective goods from any invoice, (c) to save all packaging materials with respect to damaged or defective goods, and (d) to contact us and provide a photograph showing the damage or defect immediately upon discovery. We will, at our option, repair or replace the item, or provide you a refund or credit. This is our only warranty or guaranty. Claims for damage to products that do not arise from defects in material or workmanship are the responsibility of the carrier. It is within our sole discretion as to whether to accept returns of merchandise; items returned without our prior authorization will be refused. Under no circumstances will we accept returns of custom orders, orders incorporating materials supplied by you, or large orders (six (6) or more of the same product, or in excess of $10,000). Returned items must be in their original condition and packaging, and you shall prepay and be liable for all charges in connection with the shipping of returned goods, including insurance. A 20% restocking fee will be assessed upon all returns of merchandise that is not defective. Our guaranty does not cover: (a) normal wear and tear, (b) defects occurring naturally in reclaimed products or older materials, (c) variations in the size, color, paint formulation, hue, or patina of products, (d) defects or damage occurring due to, or following, product modification, (e) damage caused by misuse, abuse, or negligent treatment of merchandise, and (f) fabric or materials supplied by you. Our guaranty is void if repairs or modifications have been attempted by any person without our consent. Our guaranty is limited to the original wholesale purchaser. In no event shall we be liable for incidental or consequential damages in connection with the purchase, operation or use of any merchandise. THERE IS NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY BY NAPA, EITHER EXPRESSED OR IMPLIED, OR ANY AFFIRMATION OF FACT OR REPRESENTATION WHICH EXTENDS BEYOND THE DESCRIPTION ON THE FACE HEREOF AND ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
INTELLECTUAL PROPERTY RIGHTS: All information concerning Ember Haus’s products, including photos, sales materials or product design is subject to trademark, service mark, trade dress, copyright and other intellectual property rights held by Napa. You may not copy, reproduce, modify, publish, distribute, transmit, transfer, reprint, post on the internet or create derivative works from such information. Furthermore, you will be responsible for any legal fees associated with disputes arising from copyright infringements, which are not associated with a direct retail sale.
WAIVER: Waiver by Ember Haus of a breach by Buyer of any provision of this Agreement shall not be deemed a waiver of future compliance with any of the provisions of this Agreement.
MISCELLANEOUS: Should any provision of this Agreement be determined to be illegal, invalid or unenforceable, the remaining provisions shall not be affected by this illegal, invalid or unenforceable provision and the parties shall undertake to renegotiate, modify, amend or delete the said illegal, invalid or unenforceable provision in order to give the fullest effect to the terms of this Agreement in accordance with the governing laws. Napa makes every effort to ensure the accuracy of pricing and product information, but in the event of an inaccuracy, Napa shall have the right to cancel any orders placed for products listed at an incorrect price or containing other incorrect information. All prices and items are subject to change without notice. Availability of all items ordered is not guaranteed. Measurements and photos are approximations only.
MODIFICATION: This Agreement constitutes the entire agreement of the parties with respect to the terms and conditions of sale and delivery. No modification of this Agreement shall be binding upon the parties unless in writing and signed by an authorized agent of Ember Haus and of Buyer. This Agreement shall be deemed to be an offer by Ember Haus in accordance with the terms and conditions hereof.