Delivery; Title and Risk of Loss
Delivery generally occurs for Products purchased within 8 weeks of acceptance of any Purchase Order, provided however, that Alphia makes no commitment to do meet any specific timing requirements. Unless otherwise stated in writing, all risk of loss and title to the Products shall transfer to Buyer at the time of Delivery. Buyer shall be required to arrange for the pick-up of all Products by their representatives or a third party common carrier within seven (7) days for Delivery. Shipping and Delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments or Delivery that are beyond Alphia’s reasonable control.
Recalls and Market Withdrawal
As used in this Section, “Recall” means any of the following: (i) the removal or correction of products that any government authority considers to be in violation of the laws, rules or regulations it administers and against which such government authority would (if not removed or otherwise corrected) initiate legal action, (ii) a “Market Withdrawal” means the removal or correction of products which involves a minor violation that would not be subject to legal action by a government authority or which involves no violation, (iii) removal or correction of products that have not been marketed, distributed or released for sale or use, or (iv) some other field correction or other corrective action. The at-fault party’s liability during any Recall shall be limited to the specific non-conforming products and manufactured lots improperly placed into commerce that become subject to the Recall or Market Withdrawal. By way of example, and not by way of limitation, if fifty (50) batches/lots of product are made by Alphia and two (2) of them are mandated to be the subject of Recall by a governmental authority, then Buyer has no entitlement to seek damages for the forty-eight (48) batches of untainted Product, and herein agrees not to seek any damages or recovery from Alphia relative to the forty-eight batches, even if Buyer determines, for whatever reason, to Recall all fifty batches of the Product. Buyer may opt for a broader Recall but will have no entitlement for recovery from Alphia for Product that is not tainted and that can be separately addressed from tainted product.
Subject to the limitations in the above paragraph, (i) Alphia will bear the direct expense of any Recall caused by any act, omission or willful misconduct of Alphia or any of its suppliers, or any Procured Materials, and will reimburse all reasonable out-of-pocket expenses incurred by Buyer as a result of implementing such Recall, and (ii) Buyer will bear the direct expense of any Recall caused by any act, omission or willful misconduct of Buyer or any of its suppliers or any Supplied Materials, and will reimburse all reasonable out-of-pocket expenses incurred by Alphia as a result of implementing such Recall.
In the event that (i) any governmental authority or agency requests a Recall, Market Withdrawal, or takes similar action in connection with any product, or (ii) either party becomes aware of any actual or potential incident, complaint, harmful ingredients, hazard, defect or any other potential problem or issue involving the products (“Defect”), then the party notified of such Recall (or the party that becomes aware of a Defect) must, as promptly as practicable and in any event within twenty-four (24) hours, advise the other party by email or other written notice thereof regarding the Recall, Market Withdrawal, or existence of a Defect. The parties will agree in good faith on an appropriate course of action. In the event of a Recall or Market Withdrawal, the parties agree to cooperate and to take all necessary steps to fully and timely implement reasonable and appropriate corrective actions.
Delivery Discrepancies
As used in this Section, “Delivery Discrepancies” means only the following: (i) the items shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. Delivery Discrepancies must be reported within a 72-hour window after transfer of ownership or physical delivery, whichever comes last (the “Inspection Period”), unless separately agreed to by you and us in writing ahead of time. The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Alphia of any Delivery Discrepancies and furnishes Alphia with written evidence or other documentation reasonably required by Alphia. The burden of proof in such discrepancies is on the Buyer or their agent to provide timely and acceptable written documentation supporting each variance. Alphia reserves the right to deny any requests falling outside of this window. If Alphia agrees with the discrepancy you will receive an additional invoice/credit for the approved adjustment. Proof of an individual discrepancy does not provide causation for extrapolation of errors across other time periods or deliveries and will not extend the Inspection Period outlined above.
Invoicing Discrepancies
Any invoice discrepancies must be reported within a 30-day window after Delivery. The burden of proof in such discrepancies is on the Buyer or their agent to provide timely and acceptable written documentation supporting each variance. Alphia reserves the right to deny any requests falling outside of this window. If Alphia agrees with the discrepancy you will receive a credit for the approved adjustment. Proof of an individual discrepancy does not provide causation for extrapolation of errors across other time periods or deliveries and will not extend the 30-day guideline outlined above.
Finance Charges
Any amounts remaining unpaid after 30 days will start accruing interest at a rate equal to the lesser of 1.33% per month and the maximum rate permitted by applicable law, from the applicable due date until paid, plus Alphia’s reasonable costs of collection. Alphia reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) (or equivalent law in the applicable jurisdiction) for Buyer’s failure to pay for the products, or any other breach by Buyer of these Terms. In addition to all other rights and remedies available to Alphia (which Alphia does not waive by the exercise of any rights hereunder), Alphia may suspend the delivery of any products if Buyer fails to pay any amounts by the applicable due date and the failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Alphia, regardless of whether relating to Alphia’s breach, bankruptcy, or otherwise. All purchases and related payments will be in US Dollars.
Limited Warranty
Alphia warrants that all goods manufactured by Alphia shall be free from material defects and shall comply with Buyer’s specifications provided to Alphia. THIS LIMITED WARRANTY SHALL BE THE SOLE WARRANTY MADE BY SELLER TO BUYER. SELLER HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Alphia shall have no liability for any Supplied Materials that are integrated into or used in connection with the Products.
Exclusive Remedy
Any goods manufactured by Alphia are proven by Buyer to be defective or in breach of the warranties stated above, then such defective goods shall be repaired or replaced free of charge, at Alphia’s sole option. Alphia will also pay for shipping and handling fees to return or destroy the defective product and to provide replacements for the defective Products. THIS REMEDY SHALL BE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO BUYER. SELLER’S LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED FROM SELLER, NOR WILL SELLER BE LIABLE TO BUYER FOR ANY LOSS OF PRODUCTION, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT PRODUCTS, OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR CONTINGENT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
Force Majeure
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached under these Terms, for any failure or substantially delay in fulfilling or performing any term contained herein (except for any of your obligations to make payments to us hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God, (b) flood, fire, earthquake, or hurricanes; (c) epidemics, pandemics, and quarantines; (d) war, hostilities, terrorist acts, and civil unrest; (e) government order, law, or actions, including any Recall; (f) embargoes or blockages; (g) national or regional emergency; (h) systemic unavailability of power, supplies, infrastructure, or transportation; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under these Terms, the other party may terminate any outstanding orders affected by such Force Majeure Event upon 15 days written notice.
Dispute Resolution and Binding Arbitration
BUYER AND ALPHIA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FURTHER, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR IN ANY WAY RELATING TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE WEBSITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified hereunder. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
Governing Law; Attorney Fees
All matters arising out of or relating to these Terms and shall be governed by and construed in accordance with internal laws of the State of Nebraska 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 Nebraska. Any action relating to or arising out of any sales of goods made by Alphia to Buyer shall be venued in state or federal court in the State of Nebraska. Buyer consents to personal jurisdiction in Nebraska and waives any claim that venue in the State of Nebraska is in any manner inconvenient. The arbiter or a court of competent jurisdiction may award the prevailing party in any such dispute its attorney fees, expert witness fees, costs and disbursements incurred by such prevailing party in collecting any amounts due from the other party in connection with enforcing these Terms and/or enforcing the specific terms of any sale of the Products.
Assignment
You will not assign any of your rights or delegate any of your obligations under these Terms 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.
No Waivers
The failure by a party to enforce any right or provision of these Terms 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 Alphia.
No Third-Party Beneficiaries
These Terms do not and are not intended to confer any rights or remedies upon any person other than Buyer and Alphia.
Notices
We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Website. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
To give us notice under these Terms, you must contact us as follows by: (i) email to: sales@alphia.com OR (ii) personal delivery, overnight courier or registered or certified mail to: 1601 Wewatta Street, Suite 650, Denver, CO 80202. We may update the email address or mailing address for notices to us by posting a notice on the Website. Notices provided by email or personal delivery will be effective immediately. Notices provided by overnight courier will be effective on business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
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 Website.
Severability
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
Entire Agreement
Our order confirmation, these Terms, and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.