Terms of Service
Terms and Conditions of Service
(Effective April 1, 2021; Last Modified April 1, 2021)
These Terms and Conditions of Service (“Terms”) govern and apply in full force and effect to your use of the https://modern-flame.com website, including all pages within this website (collectively referred to as “Site”) and by accessing, using, viewing, transmitting, caching or storing this Site or any of its services, functions, materials, or contents, or purchasing any products or services from Modern Flame, which is operated by Calvitium LLC (collectively referred to as “Modern Flame”), you expressly agree to each and all terms, conditions, and notices on this Site without modification. This document is a legally binding contract between Modern Flame and you, the User (as defined below), for the use of the Site and the purchase of products and services provided by Modern Flame (collectively, the “Services”). Certain terms, including but not limited to the arbitration clause and class action waiver clause, may restrict your rights to bring a claim in a court of law.
Modern Flame may make changes to these Terms at any time. Any changes Modern Flame makes will be effective immediately when Modern Flame posts a revised version of these Terms on the Site. The "Last Modified" date above will tell you when these Terms were last revised. By continuing to use this Site after that date, you agree to the changes. It is your responsibility to check this page periodically for changes in the Terms. Any new features or tools which are added to the Site shall also be subject to the then current Terms.
1. General Definitions
b. “Content” refers to content featured or displayed through the Site, including without limitation text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are available on the Site or otherwise available through the Service.
c. “Us” and “we” refers to Modern Flame, as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.
d. “User,” “customer,” “you,” “your” refers to the individual person, company, or organization that has visited or is using the Site or Services; that accesses or uses any part of the account; or that directs the use of the account in the performance of its functions.
2. Agreement for Use
You warrant that you possess the legal authority to enter into this Agreement and to use this Site and Modern Flame’s Services in accordance with all Terms herein. You must be at least 18 years or older to purchase Modern Flame’s products. You agree to be financially responsible for all of your use of this Site as well as for use of your account by others, including without limitation minors. You agree to supervise all usage by minors of this Site under your name or account. You also warrant that all information supplied by you or members of your household in using this Site is true and accurate. You agree that the Services offered by Modern Flame through the Site shall be used only to make legitimate purchases for you or for another person or entity for whom you are legally authorized to act.
You agree to abide by the Terms set forth herein, including, but not limited to, payment of all amounts when due and compliance with all rules and restrictions regarding availability of Services. You shall be completely responsible for all charges, fees, duties, taxes, and assessments arising out of the use of this Site and the Services.
3. Wireless Use
Functionality is not guaranteed with all types of mobile devices in using this Site. You should contact your service provider directly for technical assistance or any questions. Please note that security features vary by carrier/service provider and mobile device. Additional minutes/charges may apply and may be charged by your mobile carrier/service provider.
4. Services and Product Purchases and Use
a. Scope of Modern Flame’s Services. Modern Flame sells outdoor fire pits and wood fire ovens through the Site.
b. Limitations and Restrictions of Service. Modern Flame reserves the right to refuse its Services to anyone for any reason at any time. Modern Flame may, in its sole discretion, limit or cancel Services or products purchased per person, per household or per order. Modern Flame reserves the right, but is not obligated, to limit the sale of its Services and products to any person, geographic region or jurisdiction. Modern Flame may exercise this right on a case-by-case basis. Modern Flame reserves the right to limit the quantities of any Services and products it offers. Modern Flame may reject a product purchase order for any reason at our sole discretion.
c. Prices and Product Availability. All descriptions of products and product pricing are subject to change at any time without notice, at the sole discretion of Modern Flame. Modern Flame reserves the right to modify or discontinue any Services or products at any time without notice. Modern Flame shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of Services or products. Any offer for any Services or products made on this Site is void where prohibited.
d. Product Orders, Payment, and Shipment.
1) Order Confirmation
When you place an order, we’ll send a confirmation email with your order number. This means that we received your order, pre-authorized your payment and are now reaching out to suppliers to confirm your item(s) are in stock and ready for shipment. If all systems are go, we will process your payment and submit the order for shipment.
If, for some reason, your item or items are unavailable, we will void the pre-authorization and reach out to you via email. At that point you can choose to wait for the item to be restocked, or you may cancel the order. In the event you wait for the item to be restocked, we will process your payment immediately. We process payments right away because our system automatically deletes incomplete orders after 7 days. This keeps your payment information safe and everything running smoothly.
2) Order Shipment + Tracking
In-stock orders typically ship 2-7 days after payment processing. Custom and made-to-order items will typically have longer lead times. If this applies to you, use our Current Lead Times page to check estimated production timelines by brand.
If your order contains both in stock and made-to-order or custom items, all items will be sent together, in a single shipment. if you're order contains items from multiple brands, the items will ship separately.
Once your order ships, we’ll send you an email with tracking information within 24 hours. If you placed an order over 7 days ago and haven’t received shipping information (with the exception of custom made or made-to-order items), feel free to reach out to us at email@example.com
Track your order HERE
You can also track your order through the carrier delivering your items; but, be sure to contact us if anything seems unusual with the shipment’s progress.
3) Shipping + Delivery Charges
We offer free standard shipping on all orders to the Contiguous United States as well as curbside delivery service for freight items. When you choose standard shipping, your order should arrive in 2-12 business days. Please note that curbside delivery means the carrier will unload the item at the curb. Make sure you have a game plan to get your new fire pit or fireplace to the installation location! Sometimes shipping carriers will charge an extra fee for deliveries to remote or hard to access areas. If this applies to you, we’ll let you know before shipping your order.
Need help getting this thing where it needs to go? We can help!
We offer threshold and white-glove delivery service for an additional charge. Threshold delivery means the carrier will transport your item to the nearest dry area, like a porch or garage, as long as there is a clear and level path. If the carrier is unable to fulfill this service, reach out to us at firstname.lastname@example.org and we will refund the charge to the original payment method or credit card. White glove delivery includes unloading and transporting your item to the desired location of assembly or installation (with some restrictions in regards to accessibility).
If this is something you're interested in, please reach out to us at email@example.com and we will provide you with rates based upon your unique circumstances.
4) Our Shipping Carriers
We will always ship your order using the fastest and most reliable method.
Smaller items typically ship via FedEx or UPS Ground, they will be delivered to your door and do not require a signature.
Large items usually ship freight via R+L Carriers, Estes, SAIA, FedEx or UPS Freight and require an adult present to inspect and sign for the delivery.
When your shipment arrives at the carrier’s local terminal, they will contact you to schedule a delivery appointment. Most carriers offer appointments in 3-4 hour windows, weekdays between 8:00am and 5:00pm.
Modern Flame has no influence over carrier's operations and; therefore, does not issue refunds if your package is not delivered at the time you want it. If you have a deadline, please place your order far enough in advance to avoid scheduling conflicts.
Modern Flame is not responsible for any delivery error from the shipping company when the information we have provided is correct. If your package is lost or stolen, we will open a claim with the shipping company and it may take up to 10 days to resolve.
Change your mind? We’ve got you covered! If your order hasn’t shipped or gone into production (custom products), you can cancel at no charge, within two days of placing your order. Just send us an email at firstname.lastname@example.org and we will refund the original payment method or credit card used to place the order.
Orders canceled after 48 hours of placement, that haven’t shipped or gone into production, are subject to a $20 administration fee. Unfortunately, if your order has already shipped, you are responsible for payment of return shipping costs and a 25% restocking fee. Custom orders, including made-to-order products, are not eligible for cancellation once in production.
For information regarding any potential exemptions, please refer to the product’s page on our website.
6) Delivery of Order.
When your order arrives, you must do the following to protect yourself against liability and to make the process of replacing any lost or damaged items much smoother:
i. Take a picture of the package before you accept it from the carrier.
ii. Before you sign the delivery receipt: Inspect the box for any damage. If there is any visible damage, please make a detailed note (for example: top left corner dented) on the delivery receipt. In the event of visible damage to the box, it’s important open the item to inspect for any concealed damage (concealed damage should also be documented by taking pictures and noted, in detail, on the delivery receipt). If you are unable to open the box and thoroughly inspect the item upon delivery, please write “subject to concealed damage” on the delivery receipt, before signing.
iii. Within 24 hours, inspect your items carefully. If you find any damaged items, please take pictures of the damage. Then, reach out to us at email@example.com within the 24 hour window and we will open an insurance claim on your behalf. It’s also important to retain all original packaging (including shipping pallet, when applicable) in case a return is required.
iv. Do not refuse a shipment even if there is damage. In most situations, it’s best to accept the delivery and allow us to address the problem on our end. Refusing a damaged item may cause a delay in the claims process and also result in a re-delivery charge.
Following these steps will protect you against liability and will make the process of replacing your lost or damaged items much smoother.
Modern Flame is not responsible for the cost of repairs or replacement of damaged items if there is no notation about damage on the freight delivery receipt or if the damage was not reported within 24 hours of delivery.
7) Freight Forwarders. If you decide to use your own freight forwarder to ship an item or if you export an item outside the United States yourself or through another carrier, then Modern Flame will not be responsible for providing any replacement or refund for any damaged or defective items. You should not list Modern Flame on any export documentation.
1) In the unlikely event that an item arrives damaged, we will replace or refund your purchase at no cost to you. In order to qualify for a replacement or refund, you must:
i. Report the damage to us within 24 hours of delivery.
ii. Make a note of the damage on the freight delivery receipt.
iii. Provide pictures of the damage as well as the box with the shipping label clearly visible.
iv. Retain all original packaging for the damaged item.
2) In the event a carrier makes an inspection of a damaged item, you must:
i. Keep the damaged items in the area where they were unpacked and the damage was discovered. Don’t throw anything away, including packing materials.
ii. Have your copy of the delivery receipt on hand.
iii. Carefully read the inspection report before signing. In the report, the inspector will assess if the item can be satisfactorily repaired or if it must be replaced. A replacement item may only be ordered if the inspection report specifies “replace.” If you do not agree with something on the report, do not sign and call us immediately at 323-618-6100.
iv. Forward a copy of the inspection report to us at firstname.lastname@example.org so we may proceed with the claim. This must be done within 10 business days of delivery. The carrier will then have 120 days from the date of receipt of your claim to make settlement on interstate claims.
3) In the event a carrier waives an inspection, or fails to make an inspection within five (5) business days of the damage being reported, you must:
i. Conduct an inspection yourself by taking as many pictures and making a clear, detailed description of any and all damage observed.
ii. Forward a copy of your inspection to us at email@example.com within 10 business days of your inspection so we may proceed with the claim.
f. Missing Items. In the unlikely event your order is missing any items, please reach out to us within 24 hours of delivery at firstname.lastname@example.org to report the item. Modern Flame will not be held responsible for missing item claims reported more than 24 hours after receipt of order.
g. Returns and Refunds.
If you are unsatisfied with your purchase, you may return it for a partial refund. In order to qualify for a return your item(s) must be clean, unused and in its original packaging (including shipping pallet, if applicable). The buyer is responsible for return shipping costs as well as a 25% restocking fee. Item(s) must be sent back within 5 days of delivery. Refunds will be issued to the original payment method or credit card used to place the order.
We are unable to accept returns on custom products, made-to-order products, and sale items. To start a return, email us at email@example.com
If a shipment is refused at the point of delivery, the buyer is responsible for any return shipping costs and restocking fees, when applicable. For information regarding any potential exemptions, please refer to the product’s page on our website.
h. Warranties. All of our products carry a manufacturer’s warranty, which protects against manufacturing defects. Please refer to your owner’s manual, or the product’s page on our Site to learn more about the specific terms and conditions of your warranty.
i. Price Match Guarantee. We work very hard to ensure that we offer the absolute best prices online. If you find another online store that offers a lower price, within six months of your purchase date, please let us know and we will refund your original payment for the difference. We want you to feel confident that you get the absolute best price for the products you order. If you find that our own website has a lower price for the same item you ordered, within six months of your purchase date, we will refund the difference as well.
To request your partial refund simply e-mail us a link to the same product on our website, or on our competitors website, within six months from the date of your order, and we will process the credit accordingly. Our 100% Price Guarantee has some limitations:
1) You must purchase the item from our website before requesting your Price Match Guarantee.
2) Promotions such as rebates and buy one, get one free offers are not eligible.
3) The item must be in stock on the competitor’s website.
4) The competitor must be an online store, they may not have a retail location.
5) The website/competitor cannot be a discounter or auction website (i.e., eBay, Overstock, etc.).
6) The competitor must be an Authorized Retailer of the product in question.
The Price Match Guarantee includes the item price and the shipping charges, but it excludes sales tax.
j. Sales Policy and Third Party Gateways: All transactions for purchase of our Services and products are made through payment gateways such as Shopify or PayPal Express Checkout. Once you successfully complete a purchase you will be redirected back to our Site or you will receive a confirmation email from us. If for whatever reason you are not redirected or you do not receive an email, please contact us with your transaction details at firstname.lastname@example.org.
k. Payment and Currency Disclaimer: All transfers conducted through the Site are handled and transacted through third party dedicated gateways, such as Stripe and PayPal. Please read the terms and conditions for these third party gateways on their website as they are responsible for any transactions made and are liable for any loss or damage you may suffer as a result of using the third party payment gateway. All payment amounts are represented in United States dollars as this is the currency of our host country. We are not liable for any discrepancies in charges for international currencies. All currency conversions and their calculations through payment are made through the third party payment gateways.
l. Payment Methods. Payment through the Site are accepted via credit card, Shop Pay, Apple Pay, Google Pay and PayPal. In order for you to place an order for one of our products, you must submit valid payment details. Valid payments will be processed once your order has been accepted by Modern Flame.
m. Tax, Duty and Customs Charges. While laws differ between taxing authorities, you may be obligated to pay sales or use tax on your purchase to your state and/or other tax jurisdiction. Customers located internationally may be required to pay sales tax, duty and/or custom charges. All taxes and customs charges are the responsibility of the customer and are not included in the cost of the order or shipping charge. Taxes and customs charges differ depending on the state of the shipping address. We suggest contacting your local customs office if you are unsure of the applicable taxes and customs fees that are relevant to you. Modern Flame is not responsible for any additional taxes and customs charges that are requested during the shipment of your order. Any costs incurred by us in shipment or delivery of our products to you will be charged to your designated payment method.
n. User Information. You agree to provide current, complete and accurate purchase and account information for all purchases and orders made through this Site. You understand that your information (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
o. Image Display. Modern Flame has made every effort to display as accurately as possible the colors and images of its products on the Site. Modern Flame cannot guarantee that your computer monitor's display of any color will be accurate.
5. Prohibited Conduct
You may not interfere with the content or functioning of this Site. You are expressly restricted and prohibited from all of the following:
(a) Copy, display, modify, reproduce, or otherwise transfer any of the Site materials to any third party
(b) Interfere or disrupt networks connected to the Site
(c) Use or attempt to use any device, software or routine which interferes with the proper functioning of the Site or any transactions being offered through the Site
(d) Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Site, documentation or data related to the Services
(e) Transmit files, data or other materials containing a computer virus, corrupted data, worms, “Trojan horses” or other instructions or design that would erase data or programming or cause the Site or any equipment or system to become inoperable or incapable of being used in the full manner for which it was designed
(f) Deliver any communication to or through the Site which violates any local, state, federal or international law
(g) Deliver any communication to or through the Site that contains defamatory, libelous, abusive or obscene material
(h) Deliver any communication to or through the Site that will infringe upon the rights of any third party;
(i) Publishing any Site material in any media;
(j) Selling, sub-licensing, and/or otherwise commercializing any Site material;
(k) Publicly performing and/or showing any Site material;
(l) Using this Site in any way that is, or may be, damaging to this Site;
(m) Using this Site in any way that impacts user access to this Site;
(n) Using this Site contrary to applicable laws and regulations, or in any way that causes, or may cause, harm to the Site, or to any person or business entity;
(o) Engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Site, or while using this Site;
(p) Using this Site to engage in any advertising or marketing.
Modern Flame may restrict access by you to any areas of this Site, at any time, in our sole and absolute discretion.
6. User Comments, Feedback and Other Submissions
If, at our request, you send certain specific submissions or, without a request from us, send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that Modern Flame may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. Modern Flame is and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments. Modern Flame may, but has no obligation to, monitor, edit or remove Content that Modern Flame determines in its sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that your Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead Modern Flame or third-parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. Modern Flame takes no responsibility and assumes no liability for any Comments submitted by you or any third-party.
7. Ownership of Materials and Intellectual Property Rights
This Site and the materials contained therein reference trademarks, patents, trade secrets, technologies, products, processes or other proprietary rights and intellectual property of Modern Flame and/or other parties. No license or right to or in any such trademarks, patents, trade secrets, technologies, products, processes and other proprietary rights of Modern Flame and/or other parties is granted to or conferred upon you. You are granted a limited, non-transferable, revocable license only, subject to the restrictions in these Terms, for purposes of viewing the materials contained on this Site for your personal use only.
All contents of this Site are protected by United States and international copyright laws. No materials on this Site may be reproduced, distributed, posted, displayed, uploaded, or transmitted except as expressly permitted herein. You may not use the materials on this Site for anything other than informational purposes. The use of any materials from the Site on any other internet, intranet, web or other site or computer environment is prohibited. You may not utilize framing techniques to frame any Modern Flame trademarks, logos, or other proprietary information (including images and text). You may not use any meta tags or any other “hidden text” utilizing Modern Flame’s name, trademarks or other proprietary information. Trademarks owned by Modern Flame may not be used or displayed publicly without the prior written permission of the owner of the marks. Any rights not expressly granted herein are reserved.
8. Copyright Policy
If you are a copyright owner and you believe your work has been copied in a way that constitutes copyright infringement, please contact us and provide the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right of copyright that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party (for example, the complaining party’s physical address, email address, and telephone number);
- A statement that the complaining party has a good faith belief that use of the material is unauthorized; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications of claimed infringement should be sent to our Copyright Officer at email@example.com.
9. Disclaimers and No Warranties
Warranties Disclaimer. This Site is provided “as is,” and Modern Flame makes no express or implied representations or warranties of any kind related to this Site or the materials contained on this Site. While Modern Flame tries to maintain current information, Modern Flame does not guarantee the currency, accuracy or completeness of the information. Modern Flame denies responsibility or liability for damages which may result from your access to or use of information on this Site. While some links on this Site may lead you to other sites, Modern Flame does not endorse those sites or approve their content. Modern Flame does not have control over those sites, is not responsible for their content, and does not verify or warrant the information on them. Modern Flame provides such links solely as a convenience to you and for informational purposes only. If you go to such third-party sites, you assume any risk of doing so and you will be subject to the terms, conditions of use and privacy policies of the third-party sites. Other websites may include links to this Site. The inclusion of such links does not indicate the other website’s endorsement, support or approval of the content, advertising, products, services, policies or other materials on or available from this Site.
Modern Flame does not guarantee, represent or warrant that your use of our Services will be uninterrupted, timely, secure or error-free. You agree that from time to time Modern Flame may remove its Services for indefinite periods of time or cancel the Services at any time, without notice to you. You expressly agree that your use of, or inability to use, the Site is at your sole risk. The Services and all products and services delivered to you through the Site are (except as expressly stated by us) provided as is and as available for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
Errors, Inaccuracies and Omissions. Occasionally there may be information on this Site that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. Modern Flame reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order). Modern Flame undertakes no obligation to update, amend or clarify information on the Site, including without limitation, pricing information, except as required by law.
Technology Disclaimer. We try to ensure that the availability and delivery of our Site and our Services is uninterrupted and error-free. However, we cannot guarantee that your access will not be suspended or restricted from time to time, including to allow for repairs, maintenance or updates, although, of course, we will try to limit the frequency and duration of suspension or restriction. To the fullest extent permitted by law, we will not be liable to you for damages or refunds, or for any other recourse, should our Site and our online Services become unavailable or access to it becomes slow or incomplete due to any reason, such as system back-up procedures, internet traffic volume, upgrades, overload of requests to the servers, general network failures or delays, or any other cause which may from time to time make our Site and online Services inaccessible to you.
10. Limitation of Liability
IN NO EVENT SHALL MODERN FLAME, NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE TO YOU FOR ANYTHING ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THIS SITE, INCLUDING YOUR SERVICES ORDERS MADE THROUGH THIS SITE AND OUR ONLINE PROGRAMS, WHETHER SUCH LIABILITY IS UNDER CONTRACT, TORT OR OTHERWISE, AND MODERN FLAME, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS AND LICENSORS, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR DATA, LOST REVENUE, LOST SAVINGS, REPLACEMENT COSTS, OR ANY OTHER DAMAGES IN THE AGGREGATE EXCEEDING THE AMOUNT OF THE PURCHASE PRICE PAID AND PAYABLE BY YOU TO MODERN FLAME ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THIS SITE AND THE SERVICES. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Modern Flame’s liability shall be limited to the maximum extent permitted by law.
Modern Flame will not be liable for any loss that you may incur as a result of someone else using your account, either with or without your knowledge. To the extent allowable by law, you shall be liable for any expenses and reasonable attorneys’ fees for your failure to safeguard your account and promptly notify Modern Flame about unauthorized use of your account or breach of your account information. Modern Flame expressly disclaims any and all liability arising from revocation, cancellation, or suspension of your account for any reason. Your account and registration will terminate immediately upon your breach of any of these Terms. You may terminate your account at any time.
You agree to indemnify Modern Flame to the fullest extent from and against any and all liabilities, costs, demands, causes of action, damages and expenses (including reasonable attorneys’ fees and costs) arising out of or in any way related to your use of this Site or your breach of any of the provisions of these Terms.
12. Arbitration and Class Action Waiver
If a dispute arises from or relates to these Terms, you agree to first contact Modern Flame to attempt to resolve the issue. If the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that, except with respect to any claim or dispute involving the ownership, validity or use of any of our trademarks or service marks, any unresolved dispute arising out of or related to these Terms or to the products and services sold or distributed through this Site, will be submitted for arbitration to the AAA. Modern Flame shall have the right in a proper case to obtain temporary restraining orders, temporary or preliminary injunctive relief and/or declaratory relief (other than declarations with respect to the amount of money damages) from a court of competent jurisdiction.
The arbitration proceedings shall be heard by one independent arbitrator who shall be an attorney or retired judge. The arbitration shall be held in Los Angeles, California and in accordance with the then-existing Commercial Arbitration Rules of the AAA. All matters within the scope of the Federal Arbitration Act (9 U.S.C. 1, et seq.) will be governed by it and not by any state arbitration law. You and Modern Flame waive any rights to maintain other available resolution processes for such disputes, such as a court action or administrative proceeding. You and Modern Flame waive any right to a jury trial for such disputes.
In reaching a decision, the arbitrator shall follow these Terms, shall be bound to apply the applicable law and shall not rule inconsistently with the applicable law. The arbitration shall be conducted on an individual basis, and not as a consolidated, common, representative, group or class. The arbitrator shall include in the arbitration award any relief the arbitrator deems proper in terms of money damages (with interest on unpaid amounts from the date due at the maximum rate allowed by law), and attorneys’ fees and costs. The award of the arbitrator shall be conclusive and binding upon all parties hereto and judgment upon the award may be entered in any court of competent jurisdiction.
Other than as may be required by law, the entire arbitration proceedings (including, but not limited to, any rulings, decisions or orders of the arbitrator), shall remain confidential and not be disclosed to anyone other than the parties.
Any and all claims and actions arising out of or relating to these Terms shall be commenced within one (1) year from the occurrence of the facts giving rise to such claim or action, or such claim or action shall be barred.
YOU AGREE THAT YOU WILL NOT FILE A CLASS ACTION AGAINST MODERN FLAME, OR PARTICIPATE IN A CLASS ACTION AGAINST MODERN FLAME. YOU AGREE THAT YOU WILL NOT FILE OR SEEK A CLASS ARBITRATION, OR PARTICIPATE IN A CLASS ARBITRATION, AGAINST MODERN FLAME.
If any provision of these Terms is found to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and such provisions shall be deleted without affecting the remaining provisions herein.
14. Revision of Terms
Modern Flame expressly reserves the right to revise these Terms at any time as it sees fit and, by using this Site, you are expected to review such Terms on a regular basis to ensure you understand all terms and conditions governing the use of this Site.
Modern Flame is permitted to assign, transfer, and subcontract its rights and/or obligations under these Terms without notification or consent required. You, however, are not permitted to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.
16. Entire Agreement and No Waiver
The failure of Modern Flame to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
17. Governing Law and Jurisdiction
These Terms will be governed by, construed and enforced in accordance with the laws of the State of California without regard to its conflicts of law rules. The exclusive jurisdiction for any dispute not covered by the terms of the Arbitration provision set forth in these Terms may be filed only in the state or federal courts located in the State of California, County of Los Angeles.
18. Contact Information
Questions about these Terms should be sent to us at firstname.lastname@example.org.