1. General

THE TERM “SELLER” as used herein shall mean XMATTER LLC and may be variously referred to as “us” or “our.” The “Purchaser” as used herein shall mean the buyer and may be variously referred to as “you” or “your.” These Terms and Conditions of Sale (these “Terms”) apply to purchases made through Throwflame.com and any other online checkout operated by Seller.

By placing an order and checking the required box indicating your agreement at checkout, you agree to these Terms. If you do not agree, do not complete checkout.

These Terms are the final, definite, complete, and exclusive agreement between you and Seller regarding your purchase. Seller rejects any additional or different terms proposed by you, whether in a purchase order, email, or other communication, and such terms will not apply unless Seller agrees in a separate writing signed by Seller.

Seller’s posted policies are incorporated herein by reference, including Seller’s Returns, Refunds, and Cancellations policy located at https://throwflame.com/about-us/#returns and any Shipping policy, if posted (the “Policies”). The Policies are part of these Terms. If these Terms conflict with a Policy, the Policy controls only for that specific topic and only to the extent of the conflict.

Seller may update these Terms from time to time. The version in effect at the time you place your order applies to that order.

2. Additional Documents

All instructions, warnings, manuals, safety information, product descriptions, listings, and other materials provided with the goods, posted on Seller’s website, or provided in order confirmations are incorporated herein by reference. All references in these Terms to “provided for herein,” “set forth herein,” and the like shall be deemed to include such materials.

3. Acceptance

Your placement of an order constitutes an offer to purchase. Seller may accept or reject any order in Seller’s sole discretion. Seller’s acceptance may be evidenced by an order confirmation, shipment of any part of the order, or Seller’s commencement of performance. Seller may cancel, limit, or refuse any order due to inventory limits, suspected fraud, pricing errors, shipping restrictions, legal compliance concerns, or any other reason permitted by law.

4. Warranties

a. Limited Lifetime Warranty for Covered Products. Seller provides a limited lifetime warranty to the original purchaser only, and only for products manufactured by Seller that are marketed by Seller as flamethrowers or flame torch devices (the “Covered Products”). This limited lifetime warranty covers defects in materials or workmanship under normal and intended use and only for the service life of the Covered Product. “Service life” means the period during which the Covered Product is reasonably expected to function under normal and intended use, as determined by Seller in its sole discretion.

b. Excluded Items. This limited lifetime warranty does not apply to any non covered items, including without limitation, apparel, accessories, consumables, fuel or fuel substitutes, igniters, O rings, seals, hoses, fittings, cosmetic finishes, coatings, paint, decals, packaging, promotional items, or third party components.

c. Exclusions. This limited lifetime warranty does not cover, and Seller has no responsibility for, any damage, failure, or defect caused by or resulting from misuse, abuse, negligence, accidents, improper storage, improper maintenance, improper assembly, improper operation, use contrary to instructions or warnings, use in unsafe conditions, use in violation of any law or regulation, normal wear and tear, corrosion, alteration, modification, use of unapproved parts, repairs or service by anyone other than Seller, removal or defeat of safety features, or any use other than normal and intended use.

d. Sole and Exclusive Remedy. If Seller determines in its sole discretion that a Covered Product has a covered defect, Seller will, at Seller’s option, repair the product, replace the product, provide replacement parts, or refund the purchase price actually paid to Seller for the affected Covered Product. This is your sole and exclusive remedy. Any replacement may be new or refurbished at Seller’s option.

e. Claims Process. You must contact Seller to request authorization before returning any product. Seller may require proof of purchase, photos, video, serial number confirmation, and any other information Seller reasonably requests. Any return shipped without authorization may be refused and returned at your expense. Unless required by law, you are responsible for all costs to ship a product to Seller for evaluation or service.

f. Disclaimer. Except for the limited lifetime warranty stated above and to the maximum extent permitted by applicable law, Seller expressly disclaims all other warranties, conditions, or representations, express or implied, statutory or otherwise, including any implied warranties or conditions of merchantability, satisfactory quality, or fitness for a particular purpose, or those arising from a course of dealing or usage of trade. Some states do not allow limitations on implied warranties, so this disclaimer may not apply to you.

5. Price

The price is as stated at checkout in the online order form. Payment is due immediately upon placement of order. You authorize Seller to charge your selected payment method for the order total, including shipping and taxes as applicable. Seller may correct errors in pricing or descriptions and may cancel any affected order to the extent permitted by law.

6. Changes

Seller may at any time, or from time to time, change or substitute materials. Such changes will be valid if they are of reasonably similar quality and function to the substituted goods, as determined by Seller. Purchaser may request changes to an order by written notice, but acceptance of any change must be in writing by Seller. Seller may refuse changes in Seller’s sole discretion. If Seller accepts a change, Seller may adjust price, delivery timing, or other order details accordingly.

7. Delivery Schedule

Seller shall make commercially reasonable efforts to ship Products within the timeframes described at checkout or in the Policies, if any. Any dates or timeframes are estimates and are not guarantees. Seller may, from time to time, make changes in scheduled shipments or may direct the temporary suspension thereof, including due to contingencies described in Section 20.

8. Termination at Option of Seller

a. Time is of the essence. Seller may by written notice terminate or cancel the whole or any part of an order if Purchaser fails to perform any provision of these Terms, including failure to pay, suspected fraud, or violation of Section 22. Seller may also suspend performance or shipment while investigating suspected fraud or compliance issues.

b. The rights and remedies of Seller provided in this Section 8 shall not be exclusive and are in addition to any other rights and remedies provided by law or under these Terms.

9. Modification of Terms

These Terms together with the Policies incorporated herein contain the complete and final agreement between Purchaser and Seller regarding the purchase. No agreement or other understanding purporting to modify these Terms shall be binding upon Seller unless agreed to by Seller in writing.

10. Delivery

a. Transportation. Seller may select the carrier and routing in Seller’s sole discretion unless Seller expressly agrees otherwise in writing. Shipping costs and options are shown at checkout or in the Policies.

b. Address accuracy. You are solely responsible for providing a complete and accurate shipping address and contact information. Seller is not responsible for any loss, delay, or failure of delivery resulting from an incorrect or incomplete address, refusal, inability to receive delivery, failure to pick up a package, or any instruction you provide to the carrier.

c. Sale completion and risk of loss. To the maximum extent permitted by law, the sale is complete and title and risk of loss transfer to you when Seller tenders the package to the carrier for shipment to the address you provided. Seller has no responsibility for loss, theft, damage, delay, seizure, or non delivery after tender to the carrier.

d. Signature delivery. Signature on delivery is not required unless requested by you and approved by Seller, or required by Seller in Seller’s sole discretion.

e. International shipments. For international shipments, you are solely responsible for compliance with all laws and import requirements and for all duties, taxes, customs fees, brokerage fees, storage fees, and similar charges. Seller has no responsibility for delays, holds, refusal, seizure, or return by customs or a carrier. To the maximum extent permitted by law, if an international shipment is returned or not delivered for any reason after tender to the carrier, Seller will have no obligation to reship or refund.

11. Inspection

a. Inspection window and notice. You must inspect all goods immediately upon delivery. Any claim for missing items, wrong items, or shipping damage must be submitted in writing to Seller within forty eight (48) hours after the carrier marks the shipment delivered, together with photographs and any information Seller reasonably requests. If you do not provide notice within this period, you waive the claim to the maximum extent permitted by law.

b. Acceptance. All goods are deemed accepted upon delivery unless Seller receives a timely written rejection that complies with subsection (a). Payment also constitutes acceptance.

12. Taxes

Prices for goods specified herein are exclusive of all city, state, and federal taxes, including without limitation taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Wherever applicable, such tax or taxes shall be added to the checkout total or charged as permitted by law.

13. Waiver of Breach

The waiver of a breach or default under these Terms shall not be interpreted to constitute waiver of any subsequent breach or default and shall not act to amend or negate the rights of the parties hereto.

14. Relationship

Purchaser and Seller are independent contractors of one another. Nothing herein shall be deemed to create any relationship of agency, partnership, or joint venture between Purchaser and Seller.

15. Assignment

Purchaser shall not assign or otherwise transfer, directly or indirectly, its rights under these Terms by operation of law or otherwise without the prior written consent of Seller, and any such attempted assignment or transfer shall be void and of no force or effect. Subject to the foregoing, these Terms shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns. Seller may assign all its rights and obligations under these Terms and may assign monies due and those to become due.

16. Governing Law

These Terms shall be construed, interpreted, and enforced in accordance with the laws of the State of Ohio, without regard to conflict of law rules, except where federal law applies.

17. Indemnification

To the maximum extent permitted by applicable law, Purchaser shall defend, indemnify, and hold harmless Seller against claims, losses, damages, liabilities, and expenses arising out of or related to Purchaser’s breach of these Terms, Purchaser’s negligence or willful misconduct, Purchaser’s misuse or unlawful use of the goods, Purchaser’s modification of the goods, or Purchaser’s failure to follow instructions or warnings. Purchaser shall also defend, indemnify, and hold harmless Seller from claims of infringement of any patent, copyright, trade secret, or other intellectual property of any third party arising from Purchaser’s use of the goods in breach of these Terms and not otherwise expressly authorized by Seller in writing.

18. Limitation of Liability

To the maximum extent permitted by applicable law, Seller will not be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, including lost profits, loss of use, business interruption, or loss of goodwill, arising out of or related to any product or order.

To the maximum extent permitted by applicable law, Seller’s total liability for any claim arising out of or related to a product, order, or these Terms will not exceed the amount actually paid to Seller for the specific product that gave rise to the claim.

Any claim must be brought within one (1) year after the claim arises, to the maximum extent permitted by law.

Nothing in these Terms limits liability to the extent such limitation is prohibited by applicable law.

19. Proprietary Policy

Purchaser will not copy, reproduce, publish, or distribute any manuals, instructions, photos, videos, designs, technical information, or other content provided by Seller, except for Purchaser’s personal, non commercial use related to Purchaser’s purchase. Purchaser will not use Seller’s trademarks or branding without Seller’s prior written consent.

20. Contingencies

Seller reserves the right, at its option, to suspend performance, delay shipments, or cancel any order, in whole or in part, where such suspension, delay, or cancellation is caused by, or reasonably results from, events beyond Seller’s reasonable control, including government orders or requirements, embargos, acts, regulations, directives of civil or military authorities, acts of the public enemy, inability to secure transportation facilities, carrier interruptions, labor disputes, accidents, fire, flood, severe weather, supply disruptions, power or internet outages, or other contingencies beyond Seller’s reasonable control.

21. Arbitration

a. Informal resolution. Before starting any claim, you must contact Seller and attempt to resolve the dispute informally.

b. Binding arbitration. Except for claims that may be brought in small claims court, any dispute, claim, or controversy arising out of or relating to your purchase, any product, or these Terms will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules.

c. Small claims. Either party may bring an individual claim in small claims court if it qualifies and remains in that court.

d. Location and format. Unless the AAA rules require otherwise, arbitration will be conducted in Mahoning County, Ohio. Seller may elect that the arbitration be conducted by video, phone, or written submissions.

e. Individual claims only. You and Seller agree that claims may be brought only in an individual capacity and not as a plaintiff or class member in any class, collective, consolidated, or representative proceeding.

f. Fees and costs. Fees and costs will be allocated as provided by the AAA Consumer Arbitration Rules and applicable law.

g. Severability. If any part of this Section 21 is found unenforceable, the remainder remains in effect. If the class waiver is unenforceable, the arbitration requirement will not apply to that dispute.

22. Rules and Regulations of XMATTER LLC and Throwflame.com.

a. Legal compliance and eligibility. You represent that you are at least eighteen (18) years old or the age of majority where you live if higher. You represent and warrant that you have obtained, and will maintain, any permits, licenses, approvals, registrations, or other permissions required in your jurisdiction to purchase, possess, transport, store, and use the products. You are solely responsible for knowing and complying with all applicable federal, state, local, and international laws and regulations related to purchase, possession, transport, storage, and use of the products. Seller may refuse, cancel, or limit any order, and may refuse shipment to any location, to comply with law, regulation, or carrier restrictions, in Seller’s sole discretion. 

b. Instructions and warnings. You agree to read and follow all instructions, warnings, and safety information provided with the product and on Seller’s website. You agree to use appropriate safety precautions and protective equipment and to keep the product away from children and unauthorized users.

c. No modifications. You agree not to modify any product, remove or defeat safety features, use unapproved parts, or use any product in a manner contrary to instructions or warnings. Any modification or misuse may void warranty coverage and may create serious hazards.

d. Assumption of risk. You acknowledge that the products may be hazardous and may cause property damage, serious injury, or death if misused. To the maximum extent permitted by law, you assume all risks associated with possession and use of the products after delivery, including risks arising from misuse, failure to follow instructions, unlawful use, or modifications.

e. No responsibility after shipment. Consistent with Section 10, to the maximum extent permitted by law, Seller has no responsibility for the manner of use, storage, transport, or possession of products after tender to the carrier.

(ELECTRONIC SIGNATURE)

By clicking the button(s) indicating your agreement at checkout, you agree to these Terms. You further acknowledge and agree that by placing your order, providing shipping information, and submitting payment, you have accepted these Terms and have submitted your electronic signature creating a legally binding agreement.