Terms of Sale

1.    THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. 

THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE ANY AND ALL DISPUTES.

BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH ELK RIVER, INC. OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.

These terms and conditions ("Terms of Sale") apply to the purchase and sale of products and services through http://elkriver.com/ (the "Website"). These Terms of Sale are subject to change by Elk River, Inc. (referred to as "us," "we," or "our" as the context may require) without prior written notice at any time, in our sole discretion. You should review these Terms of Sale prior to purchasing any product that is available through this Website. Your continued use of this Website will constitute your acceptance of and agreement to such changes.

These Terms are an integral part of the Terms of Use that apply generally to the use of our Website. You should also carefully review our Privacy Policy before placing an order for products or services through this Website.

2.    Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms of Sale, all products listed in your order. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.

3.    Prices and Payment Terms
(a)    All prices, discounts, and promotions posted on this Website are subject to change without notice. The price charged for a product will be the price advertised on this Website at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price, and will be itemized in your shopping cart and in your order confirmation email. A $10.00 handling fee, in addition to any applicable freight charges, may apply to all orders below $100.00. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences. 

(b)    Terms of payment are within our sole discretion. Invoices are due and payable within 30 days from the invoice date. We may charge a late payment penalty of 1.5% per month on undisputed amounts, or the maximum rate permitted by law, whichever is less. Without waiving any of our other rights or remedies, we may refuse additional orders and suspend any services until all overdue amounts are paid in full. 

4.    Shipments; Delivery; Title and Risk of Loss

(a)    We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges unless otherwise specified in the order confirmation. Drop ships are permitted at no additional charge. 

(b)    Unless otherwise specified, all shipments are FOB origin. The shipping point is 1202 26th Street SW, Cullman, AL 35055. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

(c)    Shipments inside the continental United States will be shipped freight prepaid if the net value of the order is $1,250.00 or greater. Shipments to Alaska and Hawaii will be shipped freight prepaid if the net value of the order is $2,250.00 or greater.

(d)    All international shipments must have a minimum net value of $1,250.00. International shipments will be shipped freight prepaid to the border or freight forwarder of your choice. You are solely reasonable for any charges and taxes assessed at the border.

(e)    Special shipping methods are shipped FOB origin with no allowances. 

5.    Returns and Refunds. Except for any products designated on the Website as non-returnable, we will accept a return of the products for a refund of your purchase price, less any shipping and handling costs we paid, provided such products are returned in condition for resale. To return products, you must call 1-800-633-3954 or e-mail our Customer Service Department at customerservice@elkriver.com to obtain a Return Merchandise Authorization ("RMA") number before shipping your product. No returns of any type will be accepted without an RMA number.

You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. 

6.    Limited Warranty

(a)    We warrant to you that for a period of one year from the date of purchase ("Warranty Period"), the products purchased through the Website will materially conform to our published specifications in effect as of the date of purchase and be free from material defects in material and workmanship.

(b)    EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6(a), WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS PURCHASED THROUGH THE SITE, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(c)    Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the products. Third Party Products are not covered by the warranty in Section 6(a). For the avoidance of doubt, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(d)    We shall not be liable for a breach of the warranties set forth in Section 6(a) unless: (i) you give a written notice of the defective products to us within 30 days of the time when you discover or ought to have discovered the defect; (ii) if applicable, we are given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 6(a) to examine such products and you (if we so request) return such products to our place of business at your cost for the examination to take place there; and (iii) we reasonably verify your claim that the products or services are defective.

(e)    We shall not be liable for a breach of the warranty set forth in Section 6(a) if: (i) you make any further use of such products after you give such notice; (ii) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the products; or (iii) you alter or repair such products without our prior written consent.

(f)    Subject to Section 6(d) and Section 6(e) above, with respect to any such products during the Warranty Period, we shall, in our sole discretion, either: (i) repair or replace such products (or the defective part) or (ii) credit or refund the amounts paid by you for such products provided that, if we so request, you shall, at your expense, return such products to us.

(g)    THE REMEDIES SET FORTH IN SECTION 6(f) SHALL BE THE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 6(a).

7.    Limitation of Liability.

(a)    IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b)    IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS SOLD THROUGH THE WEBSITE.

8.    Intellectual Property Use and Ownership

    You acknowledge and agree that: 

(a)    Elk River and its licensors are and will remain the sole and exclusive owner[s] of all intellectual property rights in and to each product made available on this Website and any related specifications, instructions, documentation or other materials, including without limitation all related copyrights, patents, trademarks, and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products made available through this Website, or of any intellectual property rights relating to those products.

9.    Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy governs the processing of all personal data collected from you in connection with your purchase of products through the Site.

10.    Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Sale, for any failure or delay in our performance under these Terms of Sale when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including without limitation acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

11.    Governing Law and Jurisdiction. All matters arising out of or relating to these Terms of Sale are governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Alabama.

12.    Waiver of Jury Trials and Binding Arbitration.

YOU AGREE THAT ALL DISPUTES, CLAIMS, AND CONTROVERSIES, WHETHER INDIVIDUAL, JOINT, OR CLASS IN NATURE, ARISING FROM THESE TERMS OF USE, YOUR USE OF THE WEBSITE, OR OTHERWISE, INCLUDING WITHOUT LIMITATION CONTRACT AND TORT DISPUTES, SHALL BE ARBITRATED IN BIRMINGHAM, ALABAMA, PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION UPON REQUEST OF EITHER PARTY. ANY DISPUTE AS TO WHETHER A PARTICULAR DISPUTE OR CLAIM IS SUBJECT TO ARBITRATION UNDER THIS SECTION SHALL BE DECIDED BY ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. THE PARTIES SHALL ARBITRATE DISPUTES IN CONFIDENCE. THE ARBITRATION WILL BE BINDING, AND JUDGMENT UPON ANY AWARD RENDERED BY ANY ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE WRITTEN AWARD AND ANY FINDINGS OF THE ARBITRATOR MUST BE FILED WITHIN 30 DAYS OF THE FINAL ARBITRATION HEARING. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. A PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, MAY NOT JOIN OTHER PERSON OR ENTITIES, AND MAY NOT PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1, ET SEQ.) SHALL APPLY TO THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT OF THIS ARBITRATION PROVISION. TO THE EXTENT THAT ANY COURT OF COMPETENT JURISDICTION DETERMINES THAT THESE ARBITRATION PROVISIONS ARE INAPPLICABLE OR UNENFORCEABLE WITH RESPECT TO ANY CLAIM OR DISPUTE, THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY COURT IN ANY ACTION FOR THE ADJUDICATION OF SUCH CLAIM OR DISPUTE. THE CHOICE OF LAW RULES OF ANY JURISDICTION AND THE UNITED NATIONS CONVENTION ON CONTRACT FOR THE INTERNATIONAL SALE OF GOODS DO NOT APPLY. IN THE EVENT OF A DISPUTE, THE PREVAILING PARTY IN ANY LITIGATION OR ARBITRATION WILL BE ENTITLED TO RECOVER, FROM THE OTHER PARTY, ITS REASONABLE ATTORNEY’S FEES AND COSTS INCURRED.

13.    Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms of Sale without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale.

14.    No Waivers. The failure by us to enforce any right or provision of these Terms of Sale will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Elk River, Inc.

15.    No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.

16.    Notices.

(a)    To You. We may provide any notice to you under these Terms of Sale by: (i) sending a message to an e-mail address you provide or (ii) posting to the Website. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.

(b)    To Us. To give us notice under these Terms, you must contact us as follows: (i) by facsimile transmission to 256-739-3105; or (ii) by personal delivery, overnight courier or registered or certified mail to Elk River, Inc.; 1202 26th Street SW; Cullman, AL 35055. We may update the facsimile number or address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.

17.    Severability. If any provision of these Terms of Sale is deemed invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms of Sale and will not affect the validity or enforceability of the remaining provisions of these Terms of Sale.

18.    Entire Agreement. Our order confirmation, these Terms of Sale, our Website Terms of Use, and our Privacy Policy will be deemed the final and integrated agreement between you and us and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral.  Any modifications to any agreement between you and Elk River, Inc. must be in writing and signed by both parties.