Terms and Conditions
Hearth Products Controls Co. (HPC) warrants product against manufacturing defects that prevent safe and correct operation of the product commencing from the date of original sale/shipment from HPC. The warranty on parts and in-house labor will apply only to claims presented to us by our original customer and is in lieu of all other warranties expressed or implied. Please refer to the Warranty Chart below for warranty periods.
The defective product must be shipped back with an RMA (Return Merchandise Authorization) issued by HPC for that specific product which states the nature of the defect or warranty claim. Product to be returned should be packed carefully—HPC is not responsible for damage on returned items. The original purchase information will be required. RMA’s are only valid for 30 days from the date of issue by HPC and will not be processed if received after the expiration date. The RMA number must be indicated on the outside of the return package and a copy of the RMA in the package with product.
Our warranty does not cover items that have been damaged by overheating, modification, abuse, improper storage, installation, or maintenance. This warranty excludes claims for incidental or consequential damage and indirect-collateral expenses arising from product defects or warranty recovery.
HPC is not responsible for local codes and/or if any of our products are not approved for installation. Please check with your local building department or governing agencies for proper approvals before purchasing. HPC is not responsible for the actions including negligence of the installer
Terms and Conditions of Sale
Hearth Products Controls Co. is referred to as “HPC” and the entity or person who is purchasing goods and /or services is referred to as “Purchaser.” These Terms and Conditions of Sale should be read carefully. Sale of any goods or services described or referred to herein is subject to these Terms and Conditions of Sale. Any order for or any statement of intent to purchase any goods or services, or any direction to proceed with engineering, procurement, manufacture or shipment, constitutes assent to these Terms and Conditions of Sale. These Terms and Conditions of Sale, together with the document in which it is referenced or attached, and all documents referenced herein or therein, are collectively referred to as this “Agreement.”
REJECTION OF DIFFERENT TERMS - This Agreement is not an acceptance of any prior written or oral offer. If any such prior written or oral offer has been made, it is hereby rejected. These Terms and Conditions of Sale supersede any additional or different written or oral terms previously or subsequently communicated. Acceptance is expressly limited to these Terms and Conditions of Sale. Hearth Products Controls (HPC) hereby gives notification of its objection to and rejection of any proposed terms different from those contained in this Agreement whether communicated previously or subsequently and whether written or oral. This Agreement is the complete and exclusive statement of the agreement between HPC and Purchaser.
DELIVERY - Shipping dates are approximate and are based upon prompt receipt of all necessary information, and are not guaranteed and are not binding. HPC is not liable for delays in delivery or in performance or failure to manufacture or deliver, due to (1) causes beyond its reasonable control, including errors in manufacture, or (2) acts of God, acts of the Purchaser, acts of civil or military authority, priorities, fires, strikes, or other labor disturbances, floods, epidemics, war, terrorism, riot, delays in transportation or car shortage, or (3) inability on account of causes beyond its reasonable control to obtain necessary labor, materials, components or manufacturing facilities. In the event of any such delay, the date of delivery or of performances shall be extended for a period equal to the time lost by reason of delay. HPC SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT COSTS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM LATE DELIVERIES. Title and risk of loss to the goods shall remain with HPC until HPC places the goods with the shipper, at which time title and risk of loss shall pass to Purchaser. Goods to be shipped shall be FOB HPC’s location.
CANCELLATION/TERMINATION/MODIFICATION - There can be no cancellation, termination or modification of the order or this Agreement by Purchaser without HPC’s prior written consent.
CLAIMS - Claims of shortages or errors or other basis for rejection must be made within five (5) days after delivery.
PRICING - Prices quoted are firm provided release to manufacture and shipment are completed by HPC within three (3) months from the date of order entry. If shipment is delayed for reasons beyond control of HPC and is not made within three (3) months from date of order entry, prices are subject to change at HPC’s option.
TAXES - Any tax or other governmental charge now or hereafter levied upon the production, sale, use or shipment of goods ordered or sold will be charged to and paid for by Purchaser. Such taxes are not included in HPC’s price unless expressly so provided.
TERMS OF PAYMENT – All shipments are billed in US Dollars and must be paid in US Dollars. Our Terms of payment are Net 30 days from the date of invoice. If shipment is delayed by the Purchaser, date of readiness for shipment shall be deemed to be date of invoice for payment purposes. If, in HPC’s judgment, the Purchaser’s financial condition at any time does not justify normal payment terms, HPC may require full or partial payment as a condition to commencing or continuing manufacture, or in advance of shipment, or, if shipment has been made, recover equipment from the carrier. The full purchase price shall be paid by Purchaser regardless of any disputes or controversies and Purchaser is not permitted to withhold payment or offset any payment against claims of Purchaser which are disputed by HPC. Any check or remittance received from or for the account of Purchaser may be accepted and applied against any indebtedness or obligation owed by Purchaser to HPC, without prejudice to discharge or accord and satisfaction of the remainder of any such indebtedness or obligation, regardless of any condition, provision, statement, legend, notation, document or writing appearing on, referring to or accompanying such check or remittance.
TERMS OF PAYMENT (APPROVED DEALERS ONLY) – Net 30 Policy/Program:
- If an invoice becomes 10 days past due, the account may be placed on credit hold. Placing an account on credit hold restricts the shipment of orders.
- When an invoice becomes 15 days past due, HPC reserves the option the apply a 1.5% per month finance charge back to the due date of the invoice and for any 30 day period going forward in which the invoice remains unpaid. The account terms may be changed to Credit Card or Cash in Advance.
- If an invoice becomes 30 days past due, your account may be referred to an outside collection agency unless we have jointly agreed to a payment schedule or plan.
- When the account is referred to a collection agency, the collection charges must be repaid. Also, HPC reserves the right to make the account terms Credit Card or Cash in Advance.
- Any discounts received on a delinquent invoice may be revoked and expected to be paid. HPC reserves the right to discontinue future discounts.
- Net 30 invoices must be paid via Check or Credit Card. The use of a Credit Card payment are now allowed on invoices where terms have been extended, but will be subject to a credit card processing fee.
CREDIT CARD POLICY: We accept Visa, Mastercard, Discover and American Express
All credit card transactions will be subject to a credit card transaction fee. If your terms are credit card, your credit card will receive a pre-authorization for the dollar amount of the product ordered which generally occurs within one business day of HPC receiving your Purchase Order. This amount is shown as pending on your credit card account until the order is actually shipped. In the preauthorization stage, HPC has not received funds but they will be set aside from your available credit on your card. When your order ships, HPC post authorizes the invoice amount which includes product and shipping. This process moves the pending transaction for the amount of the product and finalizes the transaction for the invoice amount which includes shipping.
If you EVER have a temporary problem or we have made a mistake on an invoice, please call us immediately to discuss and resolve the problem.
FREIGHT - All freight will be shipped FOB Dayton, OH except Ready to Finish (RTF) enclosures.
GOODS MANUFACTURED BY OTHERS – HPC has no responsibility whatever with respect to goods sold but not manufactured by HPC and Purchaser’s sole recourse is against the manufacturer of said goods. HPC will assign to Buyer any pertinent warranty rights received by HPC from manufacturer.
PATENTS - HPC shall defend any suit or proceeding brought against Purchaser insofar as based on a claim that any goods sold hereunder, or any part thereof, constitutes an infringement of any patent of the United States, if notified promptly in writing and given the authority, information and assistance for the defense of same, and HPC shall pay all damages and costs awarded therein against Purchaser. In case said goods, or any part thereof, are held to constitute infringement and the use of said goods is enjoined, HPC shall, at its own expense and at its option, either procure for Purchaser the right to continue using said goods; or replace same with non-infringing equipment; or modify them so they become non-infringing; or remove said goods and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of HPC for patent infringement. The preceding language in this paragraph shall not apply to any goods or any part thereof not manufactured by HPC or to any goods or any part thereof manufactured to Purchaser’s design, nor for any use to which any such goods may be put as a part of any system, mechanism or process covered by patent rights of others. As to such goods or any part thereof, HPC assumes no liability whatsoever for patent infringement. If any claim is asserted against HPC that products manufactured by HPC in compliance with Purchaser’s specifications or design infringes on any United States patent or copyright, then the Purchaser shall defend and indemnify HPC for any damages and costs.
INDEMNIFICATION – As to any goods manufactured by HPC in compliance with Purchaser’s specifications or design, Purchaser hereby agrees to indemnify, defend and hold harmless HPC and its shareholders, directors, officers, employees, and agents from and against any liability or expense arising from (i) any product liability or similar claims asserted by any party attributable to the design, use, sale, distribution, marketing or promotion of any such goods; and/or (ii) any claims for death, personal injury or related property damage attributable to the design, use, sale, distribution, marketing or promotion of any such goods.
INTELLECTUAL PROPERTY - The design, performance information, construction detail of HPC goods or any part thereof, is proprietary, and remains the valuable property of HPC. Purchaser agrees not to copy, reverse engineer or duplicate the goods or any part thereof, or information related thereto provided without express written authorization from HPC.
LIMITED AND LIFETIME WARRANTIES – HPC warrants to Purchaser that any goods to be delivered hereunder will be free from defects in workmanship and material under normal use and service as follows:
|Safety Pilot & Latch Tap Valve Kits||5 years||5 years|
|Millivolt & Manual Valve Kits||5 years||5 years|
|Indoor Remote Control Kits||5 years||5 years|
|Outdoor Fire Effects||Residential||Commercial|
|Stainless Steel Fire Burners||Hassle-Free Lifetime||Hassle-Free Lifetime|
|Electronic Components and Gas Valves||3 years||1 year|
|Pilot Assembly||2 years||1 year|
|Stainless Steel Components||5 years||1 year|
|Cold Rolled Steel Components||1 year||6 months|
|Refractory Outdoor Logs||5 years||5 years|
|Unfinished Fire Pit Enclosures||3 years||3 years|
|Copper Bowl Series (Normal weathering expected)||3 years||3 years|
|Evolution 360 and H2Onfire Series||Residential||Commercial|
|Polyethylene Basin and Liner||3 years||3 years|
|Water Pump||2 years||1 year|
|Float and Sensor||2 years||1 year|
|Hose and Fittings||2 years||2 years|
|Electronics and LEDs||2 years||1 year|
|Ceramic Fiber Logs||3 years||2 years|
|Unfinished Fire Pit Enclosures||3 years||3 years|
|Finished Fire Pit Enclosures||3 years||3 years|
|Copper Bowl Series (Normal weathering expected)||3 years||3 years|
HPC recommends that maintenance records (prepared contemporaneously with the performance of the maintenance) demonstrating that the product has been maintained (from the time of tender of delivery to the time the warranty claim arises) in accordance with HPC’s Installation, Operation and Maintenance Manual.
LIMITATION OF LIABILITY FOR BREACH OF WARRANTY – HPC’s obligation for any breach of warranty is limited to repairing or replacing, at its option, without cost to Purchaser at HPC’s factory any goods which shall, within such a warranty period, be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been defective. Any request for repair or replacement must be directed to Hearth Products Controls Co., 3050 Plainfield Road, Dayton, OH 45432. HPC will not pay for any repairs made outside its factory without its prior written consent. HPC has no obligation to repair or replace any goods which have failed as a result of faulty installation or abuse, or incorrect electrical connections or alterations made by others, or use under abnormal operating conditions or misapplication of the goods.
LIMITATION OF LIABILITY - To the extent the above limitation of liability for breach of warranty is not applicable or enforceable, the liability of HPC on any claim of any kind, including negligence, for any loss or damage arising out of or connected with, or resulting from the sale and purchase of the goods or services covered by this Agreement or from the performance or breach of any contract pertaining to such sale or purchase or from the design, manufacture, sale, delivery, resale, installation, technical direction installation, inspection, repair, operation or use of any goods or services covered by this Agreement shall, in no case exceed the price allocable to the goods or services which gave rise to the claim and shall terminate one year after tender of delivery of said goods or services, plus six months allowance for shipment to approved stocking dealers and distributors. HPC neither assumes nor authorizes any person to assume for it any other liability in connection with the sale of its goods or services.
NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS – HPC’S LIMITED AND LIFETIME WARRANTIES AS SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL HPC BE LIABLE FOR PURCHASER’S OR ANY OTHER PERSONS’ CONSEQUENTIAL OR INCIDENTAL DAMAGES RESULTING FROM HPC’S PERFORMANCE UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE GOODS OR EQUIPMENT, COSTS OF SUBSTITUTE GOODS OR SERVICES, DOWN TIME COSTS, CLAIMS OF PURCHASER’S CUSTOMERS, OR ANY OTHER DAMAGES THAT RESULT IN ANY WAY FROM PURCHASER’S OR ANY OTHER PERSONS’ RELIANCE OR USE OF ANY GOODS SOLD OR PROVIDED UNDER THIS AGREEMENT, EVEN IF HPC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
REGULATORY LAWS AND/OR STANDARD - HPC makes no promise or representation that its product will conform to any state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing. HPC’s prices do not include the cost of any related inspection permits or inspection fees.
EXCLUSIVE FORUM SELECTION CLAUSE - Any claims relating to this Agreement or the goods or services shall be brought (if subject matter jurisdiction exists) solely in the United States District Court for the Southern District of Ohio (Western Division). In the absence of subject matter jurisdiction in that Court, any such claims shall be brought solely in the Common Pleas Court of Montgomery County, Ohio.
NO DELEGATION - Purchaser may not perform any duties under these Terms and Conditions of Sale through a delegate.
NO ASSIGNMENT - The rights of Purchaser hereunder may not be assigned without the prior written consent of HPC.
NO MODIFICATION, RESCISSION OR WAIVER – This Agreement may not be modified, rescinded or waived except by a writing signed by an officer of HPC.
NO THIRD PARTY BENEFICIARY – This Agreement is for the benefit of HPC and Purchaser and not for any other person.
GENERAL – This Agreement shall be shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to its conflicts of laws principles, and the rights and duties of all persons and the construction and effect of all provisions thereof shall be governed by the construed according to the laws of the State of Ohio, without regard to its conflicts of laws principles. The invalidity of any clause or provision of this Agreement shall not affect the validity or enforceability of any other clause or provision contained herein, and a court of competent jurisdiction is authorized to rewrite and enforce the offending clause to the maximum extent enforceable. Purchaser agrees to reimburse any sums expended by HPC, including but not limited to, attorneys’ fees, collection fees and any other expenses incurred by HPC in collection of payment for any amount due to HPC by Purchaser hereunder.
MINIMUM ADVERTISED PRICING POLICY (MAP)
Hearth Products Controls Co. (the “Company”) unilaterally applies this Internet Minimum Advertised Pricing Policy (“Policy”). This Policy is subject to change at any time by the Company at its sole discretion.
- 1. PURPOSE: The purpose of this policy is to protect the value of the Company’s trademarks and brand names and to attract and retain reputable, customer-friendly Internet resellers.
- 2. SCOPE: This policy is applicable to all sellers of the Company’s products (the “Products”) who advertise or sell Products on any Internet platform (“Resellers”) and to distributors (“Distributors”) that sell to such Resellers. This Policy applies to all Products of the Company unless otherwise specified by the Company. The Policy applies only to prices advertised anywhere on the Internet or by means of the Internet (Including but not limited to websites, social media, direct email advertising, and related materials that are accessible through the Internet platform by means of a hyperlink). The Policy does not apply to print advertising or in-store advertising for Products to be sold at a physical store but does apply to all advertising for sales to be made over or by means of the Internet. This Policy does not apply to the price at which the Products are actually sold. Nothing in the Policy or other agreement with the Company will constitute an agreement on the price or price levels at which Resellers or Distributors actually sell any Product.
- 3. INTERNET MINIMUM ADVERTISED PRICE: The Internet advertised price of a Product means that the net price advertised. On the internet after all discounts, rebates, gifts, or promotional items. The Internet Minimum Advertised Price (“IMAP) shall be set by the Company from time to time in its sole discretion and shall be communicated by the Company to the Resellers from time to time. If the Company makes the IMAP available on a website accessible to the Reseller and informs Reseller of this, it is the responsibility of the Reseller to maintain current knowledge of the IMAP.
- 4. POLICY ON INTERNET PRICE ADVERTISING: It is the Policy of the Company that Resellers shall not advertise ant Company Product on the Internet at prices below the IMAP for that Product established by the Company. This policy is not violated by Reseller advertising a higher price. Also, this policy is not violated by communication by email or telephone to an individual customer in response to a telephone or email inquiry from the customer. Statements on a website such as “call for pricing” for a Product do not violate the Policy as long as a price for the Product is provided on the same website and that price is equal to or exceeds the IMAP. Also, it is a violation of the Policy for the Reseller to characterize or disclose any pricing as the Internet minimum advertised price or that such minimum is based on the Company’s policies. Resellers and Distributors have not agreed to this unilateral Policy and the Company is not seeking any such agreement. However, if a Reseller or a Distributor violates this Policy, the Company’s policy is to take certain unilateral actions.
- 5. ACTIONS BY THE COMPANY: The Company has the right to sell Products to each Reseller or Distributor or to refrain or stop from doing in its discretion for any reason or for no reason. Under this Policy, if Reseller advertises Products on the Internet below the IMAP or otherwise violates this Policy, the Company may cease selling or shipping Products to Reseller or its customers and/or cease taking orders from the Reseller for a temporary or permanent period in the Company’s discretion, which may take into account circumstances such as the number of violations or the repetition of violations. Also, if a Distributor sells Product to any Reseller that violates this Policy, the Distributor will be in violation of the Policy and the Company may cease selling or shipping Products to that Distributor or its customers and/or cease taking orders from that Distributor for a temporary or permanent period in the Company’s discretion, which may take into account circumstances such as the number of violations or the repetition of violations. The Company will take these actions unilaterally and will not seek or accept any agreement by a Reseller or a Distributor or any assurance of future compliance by that Reseller or Distributor.
Rev.0 - 7/19/2019