TERMS OF SERVICE
BY CLICKING ON THE CHECK BOX AT CHECKOUT AND/OR BY PURCHASING ANY PRODUCT SOLD ON WWW.BLACKEMBER.COM ("WEBSITE") YOU ("YOU") AGREE TO THE FOLLOWING TERMS AND CONDITIONS ("AGREEMENT"), WHICH APPLY TO ALL PURCHASES YOU MAKE ON THIS WEBSITE. YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO A BINDING AGREEMENT WITH BLACK EMBER INC ("US" OR “WE").
BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO OUR COLLECTION, USE, AND DISCLOSURE OF YOUR PERSONAL INFORMATION IN ACCORDANCE WITH THE PRIVACY AND COMMUNICATIONS POLICY CONTAINED ON THIS WEBSITE. THIS INCLUDES CERTAIN PERSONAL IDENTIFYING INFORMATION AND BILLING/ SHIPPING INFORMATION YOU PROVIDE DURING THE REGISTRATION AND/OR CHECK-OUT PROCESS.
WE RESERVE THE RIGHT TO REFUSE PRODUCTS AND SERVICES TO ANYONE, FOR ANY REASON, AT ANYTIME WHO IN OUR JUDGMENT INTERFERES WITH THE SAFETY AND WELL-BEING OF OUR TEAM MEMBERS, OTHER CUSTOMERS, AND THE EXTENDED BLACK EMBER COMMUNITY.
Sale Authorization And Payment Terms
By providing your credit card, debit card, PayPal, bank account information or any other billing information through our check-out process and submitting payment, You hereby authorize us to deduct the total purchase price stated on our Website at the time of purchase for all goods You purchase, and all other stated shipping costs, taxes or other charges applicable to the sale from such method of payment. You agree that we shall be authorized to charge all such amounts immediately after You have clicked the submit button or otherwise have authorized the payment.
Pricing Policy
We are not responsible for pricing, typographical, or other errors in any price stated on our Website. We reserve the right to cancel any orders arising from such errors. We also reserve the right to cancel any sale made to You if we determine that there were inaccuracies in any product description or information contained on this Website regarding such product. All pricing is in United States currency (USD) unless otherwise stated. All listed prices do not include shipping and handling charges unless otherwise indicated. You agree to pay all charges that may be incurred by you or on your behalf through this Website, at the actual price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges.
Product Availability
All sales are subject to product availability and we may revise and discontinue any product at any time without notice to You (which may affect any information saved in any saved searches or your shopping cart). We also reserve the right, with or without prior notice to You, to: i) limit the available quantity of or discontinue any product; ii) bar any Website user from making any or all transaction(s); iii) refuse to provide any Website user with any product we sell; and iv) limit quantities on orders placed by the same user (or account), the same credit card, or orders that use the same billing and/or shipping address.
If any item you've ordered is unavailable as a result of a miscalculation in our available inventory, you will be notified as soon as possible after you have placed your order and your purchase will be promptly refunded to you, as your sole remedy in such instances.
Accuracy of Materials
We make every effort to describe and display our products accurately on this Website. However, a small number of the items may be mis-priced, described inaccurately or unavailable, and we may experience lags in uploading updates throughout this Website or other delays beyond our control. ACCORDINGLY, WE DO NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED ON THIS WEBSITE RELATING TO PRODUCT PRICES, EXACT PRODUCT FUNCTIONALITY OR PURPOSE OF USE, COLORS, SHAPES OR SIZES AS DEPICTED ON THIS WEBSITE OR REGARDING PRODUCT AVAILABILITY. WE RESERVE THE RIGHT TO CHANGE OR UPDATE INFORMATION AND TO CORRECT ERRORS, INACCURACIES OR OMISSIONS AT ANY TIME WITHOUT PRIOR NOTICE.
Title to Products And Risk of Loss
Title to any products and risk of loss or damage to the products during the shipping process shall pass to You upon delivery by us to the carrier for shipment of any product(s) You purchase.
Shipping Policies
We will generally ship your order within 72 hours unless it's a weekend or a holiday. If there's a problem with your order and we anticipate a delay we will contact you through email. A tracking number is automatically generated and then sent to your email given when we process your order.
Domestic: We offer free shipping. In all other circumstances rates are determined by weight and destination.
International: We offer free shipping options for orders over $399 USD. In all other circumstances rates are determined by a discounted flat rate or by weight and destination. Our international shipping rate is for the shipping cost only and does not include duties, taxes, or other import charges levied by the importing country.
Taxes And Other Charges
Black Ember Inc. only charges sales tax to orders placed in California. Unless otherwise indicated, You are responsible to pay any applicable sales (use) taxes or any other similar tax required to be paid by the state in which You reside or any custom duties or VAT taxes required to be paid by You due to your purchase of any product(s) from this Website. If we are required to collect any taxes at the point of sale, then all applicable taxes will be added to the purchase price and You agree to pay the same, unless You provide us with a valid and correct tax exemption certificate applicable to your purchase.
Return/Exchange Policy
If you're not satisfied with your purchase, return the unused item in its original condition for a full refund, less shipping costs. Please return all items in its original condition with tags attached, or you may not be eligible for a full refund. Please ensure the items are packed to ensure safe delivery, as we are not responsible for any damages that occur when en route. Merchandise purchased from the site must be returned within 30 days from the purchase date (or 30 days within the shipping date for preorders). Allow up to 14 business days to process your refund upon receipt in our facility.
*International returns we are unable to cover return shipping, nor are we able to cover duties for returns.
Pre-orders and Back-orders Policy
In the case of an order for a high demand item we often run a pre-order or take back-orders to ensure those who order receive product as soon as it is finished. We will charge your card to ensure your reservation of the product and we will ship it to you as soon as we can. Please take note of estimated delivery times posted on the site, and reach out to us via email (team@blackember.com) if you need the product by a certain time. Note that estimated delivery times can be updated at anytime without notice as we receive transit updates from our freight forwarders. We can sometimes get things to you sooner, but please be patient. All of our products are hand-crafted in small batches and refuse to rush and will never sacrifice quality for expediency. You may cancel your pre-order at any time during the pre-order period.
Our Intellectual Property
All logos or any other trademarks, trade names or service marks and/or any other marks or logos posted on this Website, whether marked or unmarked, is either owned by us, an affiliate or subsidiary, or by some third party. This includes any product names appearing on this Website whether marked or unmarked by us. No trademarks, trade names, service marks, etc. posted on this Website may be used without the prior written consent of the owner. We retain all rights, ownership, title and interest in all trademarks, trade names or service marks contained on the Website owned by us, whether or not we have registered for or have been granted any such protections under State and/or Federal law.
Intellectual Property Disclaimer
Any references made on this Website to any established trade names, trademarks, service marks, product names or any other third party intellectual property is strictly used for reference and identification purposes only. No ownership, affiliation or sponsorship exists between us and the owner of any referenced trademark, trade name, service mark, or with any specific good or service referenced on this Website. We do not endorse or recommend any services or products referenced on this Website unless otherwise expressly stated, however they may be referenced or identified.
Warranty Disclaimer
OTHER THAN OUR LIFETIME WARRANTY ALL PRODUCTS ARE PROVIDED BY US "AS IS" AND "WITH ALL FAULTS" AND YOU ASSUME THE ENTIRE RISK ASSOCIATED WITH YOUR USE OF ANY PRODUCT(S) PURCHASED BY YOU. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING YOUR USE OR THE PERFORMANCE OF ANY PRODUCT(S) YOU PURCHASE THE SUBJECT OF THESE TERMS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON- COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
Limitation of Liability
YOU AGREE THAT WE OR ANY OF OUR OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AFFILIATES, AGENTS, ATTORNEYS ITS SUCCESSOR'S AND/OR ASSIGNS, IF APPLICABLE, SHALL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR ANY OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR PURCHASE OF ANY PRODUCT OR SERVICE FROM THIS WEBSITE INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS OR REVENUES, LOST DATA OR LOST GOODWILL OR ANY OTHER DAMAGES. YOU AGREE THAT OUR LIABILITY SHALL IN ALL CASES BE LIMITED TO THE TOTAL PURCHASE PRICE OF THE PRODUCT(S) IN QUESTION PAID BY YOU. WE SHALL NOT BE LIABLE TO YOU AS STATED HEREIN REGARDLESS OF THE CAUSE OF ANY SUCH DAMAGE OR THE NATURE OF ANY CLAIM, WHETHER FOR BREACH OF CONTRACT, BY STATUTE, FOR ANY TORTIOUS CONDUCT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR BY ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE SAME. ACCORDINGLY, YOU AGREE TO WAIVE YOUR RIGHTS UNDER ANY LAWS THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS INCLUDING, CALIFORNIA CIVIL CODE SECTION 1542 IF YOU ARE A CALIFORNIA RESIDENT, OR ANY OTHER APPLICABLE STATE LAWS.
Indemnification
You agree to indemnify, defend and hold harmless BLACK EMBER INC and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
Exceptions to Disclaimers And Limitations
Some jurisdictions do not allow the waiver of certain warranties or the limitation of liability for certain damages. Accordingly, some of the above warranty disclaimers and limitations of liability may not apply to You. To the extent that we may not disclaim any implied warranty or limit its damages, the scope and duration of any required warranties under law and the extent of our liability shall be as limited as is allowed under any applicable laws.
Information Security Policy
We make no guarantee, warranty or representation that your name or email address, or any other Identity Information you provide through this Website, will remain secure at all times from any illegal or unauthorized access of the information by third parties. We shall not, under any circumstances, be held responsible or liable for information or transmissions that are accessed by third parties illegally or without authorization through this Website and/or network. We will report any unauthorized access of your information promptly upon discovery, and we will use our best efforts to remedy any security vulnerability that contributed to the unauthorized access. Security is uppermost in the minds of online shoppers. We use Shopify to handle your order and Stripe to process payments. Our payments page is SSL encrypted and credit/debit card information is not stored on our database.
Arbitration
YOU AGREE TO GIVE UP YOUR RIGHTS TO BRING ANY CLAIMS RELATING TO THIS AGREEMENT OTHER THAN TO PROTECT YOUR INTELLECTUAL PROPERTY AND/OR YOUR USE OF THIS WEBSITE BEFORE A COURT OF LAW OR OTHER LEGAL TRIBUNAL AND TO RESOLVE ALL DISPUTES OR CLAIMS EXCLUSIVELY BY ARBITRATION. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, any and all claims, disputes or controversies of whatever kind and nature, whether preexisting, present or future between You and us, our agents, employees, principals, directors, officers, shareholders, members, managers, successors and assigns, to the extent applicable, arising from or relating to this Agreement, its interpretation or validity, shall be resolved exclusively by binding arbitration before a single arbitrator using the commercial arbitration rules of the Arbitration Service of San Francisco (“ASS”). Arbitration will occur only in San Francisco, California and shall be administered by the ASS. Notwithstanding the foregoing, to the extent You have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in state or federal court under the terms of this Agreement. Any arbitration proceeding shall be brought and conducted in San Francisco California, U.S.A. The arbitrator shall be authorized to grant any relief available under law or in equity and any award rendered shall be final and conclusive upon the parties, except that the arbitrator shall not be authorized to award punitive damages to either You or us. Any judgment may be entered in the Superior Court of California located in San Francisco County, San Francisco, California, or any such other court that has personal jurisdiction over you, and the arbitrator may award reasonable costs and fees, including reasonable attorney’s fees and all arbitration fees, to the prevailing party, notwithstanding the then current rules of the ASS. You agree that a written notice requesting arbitration must be provided to us within one (1) year after the acts or occurrences supporting such a claim, without tolling for a failure to discover such act or occurrence. If You do not send a written notice to us within the requisite one (1) year period, that claim (or those claims) shall be waived and released and You shall be forever barred from asserting that claim (or those claims) in the future.
Venue/Choice of Law
Any and all claims, demands, controversies or legal proceedings arising out of or related to this Agreement and/or your use of this Website may only be brought exclusively in the Superior Court of California situated in San Francisco County, San Francisco, California, U.S.A. and You hereby expressly agree to submit to the personal jurisdiction of any such court and consent to extra-territorial service of process. Further, You waive any right to challenge the selection and choice of jurisdiction and You acknowledge that the right of selection of jurisdiction being waived by You is a valid part of the consideration of allowing access to and use of this Website by You. This Agreement shall be construed and enforced in accordance with the laws of the state of California, U.S.A., without regard to any applicable provincial conflict of laws principles and without regard to any applicable International laws, treaties or regulations.
Miscellaneous:
A. Entire Agreement. You agree that this Agreement constitutes the complete and exclusive agreement regarding your purchase and use of any product sold by us and supersedes any prior communications, representations or agreements of the parties, except any terms contained in the Website Terms of Use, our Privacy and Communications Policy or any Other Agreement which may relate to your purchase or licensing of any product from us, and cannot be altered, amended, or modified except in writing executed by an authorized representative of each party.
B. Authority. If You are accepting these terms on behalf of another person or a company or other legal entity, You represent and warrant that You have full authority to bind that person, company, or legal entity to these terms of sale and otherwise have authority to enter into this Agreement.
C. Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction, in whole or in part, to be invalid, illegal, or unenforceable in any respect, for any reason, the validity, legality and enforceability of the remainder of that provision, any other remaining provisions, and of the entire Agreement shall not in any way be affected or impaired thereby, and shall be interpreted, to the extent possible, to achieve the purposes as originally expressed with the provision found to be invalid, illegal or unenforceable. Each provision hereof is intended to be severable, and the validity, legality, or enforceability of any provision of this Agreement shall not affect the validity, legality, or enforceability of the remainder of the Agreement.
D. Waiver. The waiver by us of a breach of any provision of this Agreement by You shall not operate or be construed as a waiver of any other or subsequent breach by You.
E. Force Majeure. Except for your payment of the purchase price or fees, neither party shall be liable for any delay or failure to perform to the extent caused by fire, flood, explosion, war, riot, embargo, labor disputes, compliance with any laws, regulations, orders, acts or requirements from the government, civil or military authorities, terrorist attacks, acts of God or the public enemy, or any act or event of any nature reasonably beyond such party's control.
F. Prior Dealings. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of or interpretation of any provision contained in this Agreement.
G. Survival. Any provisions in these Terms which by their nature extend beyond the termination or expiration of any sale will remain in effect until fulfilled and will apply to both parties respective successors and permitted assigns.