eMachineShop - Terms of Use and Order Policies

We are delighted that you have chosen to design and order your custom-designed parts (“Custom Parts”) through eMachineShop.com. If this is your first time, welcome aboard — we look forward to cultivating a long-term, mutually beneficial relationship with you. If you are a returning customer, welcome back — we’re delighted to see you again. In both cases, we hope that your new Custom Parts will bring you personal satisfaction and professional success.

The following “Terms of Use and Order Policies” will hopefully answer most if not all of your questions regarding the placing, fulfillment and delivery of your order.

PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.

These Terms of Use and Order Policies form a binding legal agreement between eMachineShop.com (“EMS”) and either (i) You in your individual capacity or (ii) You in your capacity as authorized representative of another person, company or other legal entity, together with that person, company or other legal entity for whose benefit you order Custom Parts (“You”).

ORDER BASICS — CREATION:

1. Acceptance of Terms. EMS’ acceptance of any order is expressly made conditional upon your agreement to these Terms of Use and Order Policies. By placing an order, You confirm that You have first read, understood and accepted these Terms of Use and Order Policies, and You acknowledge that You are bound by them. If You do not wish to be bound by these Terms of Use and Order Policies, then do not complete your order.

2. eMachineShop Software. The eMachineShop software application (the “Software”), with which You design your unique Custom Parts, was provided subject to an end user license agreement (“EULA”) and You agree and re-affirm that You are, and shall remain, bound by such license agreement.

3. Placement of Orders. Placement of an order using the Software shall constitute an order to us, firstly, to test the suitability of your design(s) for our fabrication, and, secondly, to produce such Custom Parts as EMS deems suitable for fabrication.

4. Order Confirmations. A confirmation email is normally sent upon receipt of each order. Make sure that EMS’ e-mail address is not blocked by spam filters. If You do not receive a confirmation e-mail, contact EMS to confirm our receipt of your order. To avoid possible double-ordering (and double-billing), resubmit an order only if EMS confirms in writing that your original order was not received.

5. Price Quotations. The Software automatically generates price estimates for the fabrication of Custom Parts. While these estimates are generally accurate, they are subject to upward or downward adjustment by EMS, after it has received your order. Such price adjustments may be invoked to accommodate many factors, including but not limited to unusual designs, specific customization requests made by You via the Software’s “Comments to the Machinist” feature, planned revisions to the Software’s internal price list, and unexpected market fluctuations affecting the availability and price of raw materials. If a price adjustment is made, You will be notified via the e-mail address supplied by You during the ordering process. You will be given ten (10) business days to accept the new price (all other terms will remain unchanged) or cancel your order. For your protection as well as ours, if EMS does not receive a response from You within that time frame, your order will be automatically canceled. You may, of course, re-submit your order at any time thereafter.

6. Declined Orders. Sometimes, a Custom Part will prove technically or economically impracticable to fabricate as ordered. EMS reserves the right to decline fabrication of a Custom Part, in its discretion. In the event of an order being declined, EMS will not charge You for any work done or materials used, and You may not hold EMS liable for any inconvenience or losses incurred by You. If You order more than one Custom Part at one time, and EMS declines the production of fewer than all of the Custom Parts, any remaining Custom Parts will continue in production. To cancel the production of the remaining Custom Parts, see Section 7, below.

ORDER BASICS — CANCELING / MODIFYING:

7. Canceling/Modifying Orders. The Custom Parts provided by EMS are custom fabricated products, and not stocked items. For this reason, once EMS has confirmed your order, or has begun taking actions with respect to your order, You may cancel or modify the order, in whole or in part, only on the condition that You first (i) pay for all administrative charges, work completed, work in process, raw materials ordered, unamortized tooling, engineering, handling, overhead, production costs, and any other costs actually incurred by EMS in connection with the order, or part(s) thereof, that You wish to cancel; and (ii) agree in writing to a price adjustment (up or down) reflecting the new charges associated with the order, or part(s) thereof, that You wish to modify. These various charges will be calculated by EMS at the time of the request for cancellation or modification.

8. Modifying Orders. EMS reserves the right to cancel any extant order if manufacturing the desired Custom Parts is found to be technically or economically impractical. In the alternative, EMS may modify specifications or manufacturing processes, provided the modifications do not adversely affect the form, fit or function of the Custom Parts.

9. Price/Description Changes. All prices, pictures and descriptions are subject to change. EMS is not responsible for pricing, typographical or other errors, in any price estimate or website description, and reserves the right to cancel or refuse, in its sole discretion, any orders resulting from such errors.

CUSTOM PART DESIGN AND MANUFACTURE:

10. Test Runs. We appreciate and encourage the placement of large orders, but we want You to be sure that You are happy with the finished Custom Parts before You commit yourself to large production runs. If You are working with a new design, or are unsure how a particular design or material will function in a specific application, You may be better served by placing a smaller “test run” order first and then following up with a larger order once You are comfortable that each Custom Part, as designed, is suitable for your needs.

11. Mating Parts. For the same reason, if You are designing Custom Parts that mate together, including but not limited to bent parts, we recommend that You consider placing a small “test run” order, to ensure that your specifications translate properly into the physical objects that You envision. You are responsible for ensuring that your designs mate properly and allow appropriate clearances/tolerances, and placing a small initial order is the best way to do this.

12. Fabrication Interpretation. Where fabrication issues are open to interpretation, the machinist may choose any interpretation common in industry. For example, if the exact angle of the brush grain in a brush finish is not specified by You in the Software, the machinist may select any angle. If any such details are important to You, it is your responsibility to indicate your requirements by using the Software’s “Comments to the Machinist” feature. 

13. Material Properties. All Custom Parts are subject to tolerances and variations consistent with usages of trade and uniform manufacturing practices concerning material properties (including but not limited to color, dimension, flatness, thickness, weight, straightness, sections, composition, weight, texture, tensile strength, torsional strength, heat resistance, electrical resistivity and chemical reactivity). You acknowledge and accept that there are normal variations in material properties, and that the Custom Parts may vary within the range accepted as conforming within the trade. The material properties information presented by the Software for each material type is to be taken as a general guide, and not as a definitive specification. This information is neither intended nor guaranteed to be comprehensive, and may not apply specifically to your intended application of the Custom Parts. If specific Material Properties are critical, it is recommended that You make independent verification from another source, prior to submitting an order. As always, a small “test run” order might be the best way to go, followed by a larger “full-scale” order.

13.  Material Properties.  All Custom Parts are subject to tolerances and variations consistent with usages of trade and uniform manufacturing practices concerning material properties (including but not limited to color, dimension, flatness, thickness, weight, straightness, sections, composition, weight, texture, tensile strength, torsional strength, heat resistance, electrical resistivity and chemical reactivity).  Measurement specifications will be governed generally by ASME Y14.5M-1994. You acknowledge and accept that there are normal variations in material properties, and that the Custom Parts may vary within the range accepted as conforming within the trade. The material properties information presented by the Software for each material type and the tabular information presented in the Software's "Material," "Finish" and other dialogs are to be taken as general guides, and not as definitive specifications. This information is neither intended nor guaranteed to be comprehensive, and may not be error-free or apply specifically to Your intended application of the Custom Parts. If specific Material Properties or design elements  are critical, it is recommended that You make independent verification from another source, prior to submitting an order. As always, a small “test run” order might be the best way to go, followed by a larger “full-scale” order.

14.  Special Instructions.  The Software's "Comments to the Machinist" feature allows You to provide EMS with specific, detailed instructions, to better help You customize the designs submitted to EMS for fabrication. EMS will do its best to interpret your instructions, but EMS must rely upon You to be as clear and precise as possible, and shall not be responsible for material or fabrication decisions resulting from errors or ambiguities in your instructions.

15. General Safety Considerations.  You acknowledge that the Custom Parts designed with the Software and ordered from EMS were not designed by EMS, nor does EMS have any control over their design, or their use or misuse once they have been delivered to You.  It is your responsibility to create a functional, safe design and provide adequate safety devices and equipment to safeguard the end user and other persons and property from harm stemming from any particular use, operation or setup, and to adequately conform to all Federal, State, and Local laws, rules, regulations and safety standards, and all industry safety standards.  Additionally, it is your responsibility to fully inspect all Custom Parts for design conformity, variation in material selection, defects in fabrication, defects in material uniformity or strength, and all other matters that could effect safety. EMS shall not be liable in any manner whatsoever for the consequences of, or the results obtained through, the use or application of the Software and/or the Custom Parts, including but not limited to their use with or incorporation into weapons or other inherently dangerous instrumentalities. EMS shall not be responsible for any losses or damages sustained by You or by any other party as a result of the use, installation or application of the Custom Parts. Furthermore, You shall indemnify and hold harmless EMS from any Claims arising out of, connected with or related to the use, installation or application of the Custom Parts.

16. Assistance and Advice. EMS does not offer an engineering design service, nor claim any expertise in engineering, design, or any related spheres. Accordingly, if the Software or the EMS staff helps You create or modify a design, or offers suggestions or advice in any other way, such assistance and/or advice are general suggestions only, and are not intended to replace consultation with engineers or other suitable professionals or resource materials. It is your responsibility to review carefully your design and any designs or assistance from EMS, and You take any advice or suggestions provided by the Software or the EMS staff at your own risk.

17. Life Support / Avionics / Other Safety-critical Applications. The Custom Parts are not intended for sale as parts, components or assemblies for the planning, construction, maintenance, operation or use of any nuclear facility or weapons systems, nor for use in aircraft flight, navigation, communication or ground support equipment, nor for use in medical systems or life support equipment where the failure or malfunction of such Custom Part can reasonably be expected to result in personal injury, or other safety-critical applications. You agree that, in the event that You use any Custom Parts for such purposes, You do so at your own discretion and at your own risk, and that EMS is not liable, in whole or in part, for any claims or damages arising from such use. Furthermore, You shall indemnify and hold EMS harmless from any Claims arising out of, connected with or related to the use and performance of Custom Parts in such applications.

18. Regulated Uses. You are solely responsible for assuring compliance with any and all statutory or regulatory requirements pertaining to the intended use of the Custom Parts, either as delivered to You or after having been incorporated into a system, product, device, apparatus, or mechanism. Furthermore, You shall indemnify and hold EMS harmless from any Claims arising out of, connected with or related to your failure to do so.

19. Intellectual Property Infringement. You warrant and represent that the designs, plans, schematics, manufacturing specifications, and other order-related information submitted by You, and the Custom Parts manufactured or fabricated in accordance therewith, are original inventions/works of authorship, designed and created by You, which do not—by themselves, as incorporated into a system, product, device, apparatus or mechanism, or as used in a process—infringe or violate any rights (including but not limited to patent, copyright or trade secret rights) of any third party. You further warrant and represent that the designs, plans, schematics and manufacturing specifications submitted by You, and the Custom Parts manufactured or fabricated in accordance therewith, do not infringe or violate any local, state, federal or international law, code or regulation. You shall indemnify and hold harmless EMS against any and all Claims arising out of, connected with or related to the foregoing warranties and representations.

19B. Confidential Information.  EMS will keep confidential your identity, contact, payment, and design information. Except as authorized by You in writing or required by law, EMS may only disclose to its employees, affiliates, agents or fabricators such Confidential Information as is needed for them to perform their services in connection with Your order.  To the extent practicable, such disclosures will be made anonymously, without your identity, contact, or payment information, and with non-essential drawing text comments (Comments To User) removed. Further security is realized by the fact that the detailed function of parts are generally not evident out of context. This shall not apply to any information that is or becomes publicly available through no fault of EMS. You retain all rights in and to your submitted designs, and EMS claims no rights in or to your submitted designs.

ORDER BASICS — DELIVERY AND PAYMENT:

20. Terms of Payment. All orders must be prepaid unless credit has been previously established or other terms have been agreed to in writing by EMS. First time customers must pay by credit card, wire transfer, C.O.D., or money order unless otherwise approved by EMS prior to the fulfillment of order. All payments shall be without deductions for back-charges or other accounts between EMS and You, which shall be settled independently of the payment of the invoice and of each other. All payments due herein shall be made in U.S. dollars. For customers located within the U.S. and Canada, EMS accepts payment in the form of a check, money order, C.O.D. (Collect on Delivery), wire transfer, Visa, MasterCard, Discover, American Express, and check cards with the Visa or MasterCard logo. A US$25.00 fee will be charged for each returned check. A C.O.D. fee of US$7.50 per package will be grouped together with invoice shipping charges. All orders placed outside the United States or Canada must be prepaid via wire transfer or check in US dollars. All payments must be received and cleared prior to release or shipment of Custom Parts. No products furnished by EMS shall become a fixture by reason of being attached to real estate.

21. Taxes. You are responsible for payment of any and all taxes, Custom duties, excise fees, or other imposts associated with your order.

22. Delivery Time Quotations. Delivery times quoted by the Software are estimates only. While EMS strives to deliver on time as requested, there are many factors that can delay delivery. Under no circumstances shall EMS be liable for any special or consequential damages, or for any loss, damage or expense (whether or not based on negligence) directly or indirectly arising from delays or failure to give notice of delay.

23. Delivery Method. You may select the mode and port of shipment that You prefer or, at your option, EMS will select the fastest, safest and most economical means practicable. EMS will normally follow your shipping instructions, but reserves the right to ship Custom Parts freight collect and to select the means of transportation and routing when your instructions are deemed unsuitable. If EMS selects the carrier, the cost of appropriate insurance will be added to your order price, in addition to shipping costs. If You select the carrier, You have the option of insuring the delivery, an option which EMS strongly endorses for your protection.

24. Import / Export. You acknowledge that Custom Parts, and the transactions contemplated by this Terms of Use and Order Policies, which may include or involve technology and software, are subject to the export control laws and regulations of the United States, and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations, and You warrant and represent that You will do so. Under U.S. law, Custom Parts may not be exported, re-exported, or transferred to restricted countries, restricted end-users, or for restricted end-uses. The U.S. currently has embargo restrictions against, among others, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. Compilations of restricted end-users are maintained currently as the U.S. Department of Commerce’s Denied Persons List (http://www.bis.doc.gov/dpl/default.shtm), Entity List (http://www.bis.doc.gov/entities/default.htm), and Unverified List (http://www.bis.doc.gov/enforcement/unverifiedlist/unverified_parties.html), the U.S. Treasury Department’s Specially Designated Nationals List (http://www.treas.gov/offices/enforcement/ofac/sdn/), and the Department of State’s List of Statutorily Debarred Parties (http://www.pmddtc.state.gov/debar059.htm). You warrant and represent that You will not export, re-export, or transfer any Custom Parts to restricted countries, to restricted end-users, or for restricted end-uses, including but not limited to activities related to weapons of mass destruction. Such activities include, without limitation, those related to: (1) the design, development, production or use of nuclear materials, facilities or weapons; (2) the design, development, production or use of missiles or support of missile projects; and (3) the design, development, production, or use of chemical or biological weapons. You also warrant and represent that You are not located in, or a resident or national of, a restricted country; that You are not on any of the U.S. lists of restricted end-users; and that You are not engaged in or financially or materially supporting any activities related to weapons of mass destruction or other restricted or illegal activities. You understand that the requirements and restrictions of U.S. law as applicable to You may vary depending upon the Custom Parts ordered and may change over time, and that, to determine the precise controls applicable to the software, it is necessary for You to refer to the U.S. Export Administration Regulations and the U.S. Foreign Assets Control Regulations. You agree not to provide any written regulatory certifications or notifications on behalf of EMS. If delivery is to be made outside the USA, You shall be responsible for obtaining and paying for any permits, licenses, or other governmental authorization(s) required, as well as comply with all laws and regulations thereof. You shall indemnify and hold EMS harmless from any and all Claims arising out of, connected with or related to these promises, warranties and representations, or the breach or alleged breach of same. By placing an order for Custom Parts, You confirm explicitly that You agree to the foregoing, and You acknowledge explicitly that your promises, warranties and indemnification obligations under this Section 24 are ongoing and shall survive the consummation or termination of the transactions contemplated by these Terms of Use and Order Policies.

PROBLEMS WITH YOUR ORDER:

25. Title / Risk of Loss. Regardless of the method of delivery, title and risk of loss will pass from EMS to You upon delivery of the Custom Parts to the carrier. Loss or damage that occurs during shipping by a carrier selected by EMS is EMS’s responsibility, and shall be remedied solely by replacement of the lost or damaged Custom Parts. Loss or damage that occurs during shipping by a carrier selected by You is your responsibility.

26. Shipment Quantity. When we fabricate parts, we aim to supply whatever quantity You order, plus or minus a certain amount to allow for fabrication errors and overages. This allowed variation is indicated by the Software. Provided that EMS ships a quantity that is within the range indicated by the Software, your order will be satisfied. If, however, the actual quantity shipped is less than the minimum indicated by the Software, You will be charged in proportion to the quantity actually shipped. So, if You ordered 100 units for $100, and the Software indicated a target supply range between 95 and 105, the delivery of 95 or more units would satisfy your order. If EMS could only supply 90 units, your pro rata cost would be $90.

27. Duty to Inspect. We cannot stress this enough — examine the packing carefully upon receipt, and advise the carrier of any visible damage at the time of delivery. If You receive Custom Parts that have been damaged in transit, keep the shipping carton, packing material and the Custom Parts intact.

28. Duty to Notify EMS of Problems. If You believe that any part of your order is missing, damaged or defective, You must so notify EMS, in writing, within ten (10) business days after the Custom Parts’ arrival at the delivery destination specified in your order. Your written notice must set forth with particularity the manner in which You believe that the delivered Custom Parts do not comply with your order or these Terms of Use and Order Policies. Failure to give EMS timely notice constitutes and demonstrates your approval and acceptance of the Custom Parts, in the quantity and quality delivered.

29. Returns. No Custom Parts may be returned without prior authorization from EMS. After You have provided EMS with the written notification described in Section 28, contact EMS to request a Return Material Authorization (“RMA”) number. No product shall be accepted for return without an RMA number. When any Custom Parts are returned for examination and inspection, You assume responsibility for damage resulting from improper packaging and damage or loss in transit. You must return all allegedly defective Custom Parts, together with all packaging, manuals, and items included in the original box, along with a detailed explanation of the defect, within thirty (30) calendar days.

30. Remedies of EMS. In the event that You fail to make any payment to EMS when due, your entire account(s) with EMS shall become immediately due and payable without notice or demand. In addition, payment may be requested in advance of shipment for quantities not yet delivered, or the balance of the order may be cancelled by EMS without liability to it. All past due amounts are subject to service charges in the amount of the lesser of 1.5% per month, or the maximum contract rate permitted by law from the date when payment becomes due from day to day until the date of payment. Reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and You shall pay all such charges.

WARRANTY / LIMITATION OF LIABILITY:

31. Limited Warranty. EMS warrants to the original purchaser that each Custom Part delivered shall be free from defects in material or workmanship, and that each Custom Part delivered will meet the contractually agreed upon specifications, at the time of delivery. EMS’s obligation under the Warranty contained herein is limited to repairing or replacing, at its option, any Custom Part that does not meet this Warranty, provided that You have provided EMS with timely notice under Section 28 and returned the Custom Part(s) to EMS, transportation charges pre-paid, and provided that, upon EMS’s examination, the Custom Part, when tested within the specified ratings and in accordance with good engineering practice, does not meet the Warranty contained herein. All Custom Parts are subject to the tolerances and variations referred to in Sections 13 and 26. EMS, based upon its own examination, will determine whether a Custom Part meets specified or standard tolerances or is non-conforming pursuant to this Warranty. This Warranty does not cover ordinary maintenance, or alleged defects resulting from wear and tear within the normal consumable life of the Custom Part, neglect, misuse, abuse, improper handling or storage, alterations, the connection of the Custom Part to or incorporation of the Custom Part into other objects, power or external circuitry, high usage, electro-static discharge, operation in unusual environments, improper maintenance, improper handling, accident and/or negligence. No repair or replacement will extend the applicable warranty period. EMS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCT. THE FOREGOING WARRANTY AND REMEDIES ARE FOR YOUR EXCLUSIVE BENEFIT AND ARE NOT TRANSFERABLE.

32. Disclaimer of Warranties. You acknowledge that EMS does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) Custom Parts, their use, design, application or operation, their merchantability, their physical condition or their fitness for a particular purpose, (ii) the maintenance or other expenses to be incurred in connection with the Custom Parts, (iii) the engineering, design, fabrication work or any other work or service (whether gratuitous or for payment) supplied by EMS and/or its agents, suppliers and employees or (iv) the accuracy or reliability of any information, designs or documents furnished to You. THE LIMITED WARRANTY DESCRIBED IN SECTION 31 IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES OR SIMILAR OBLIGATIONS (IF ANY) CREATED BY ANY ADVERTISING, DOCUMENTATION, PACKAGING, OR OTHER COMMUNICATIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMS PROVIDES THE PARTS AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED. OTHER THAN THE LIMITED WARRANTY DESCRIBED IN SECTION 31, EMS HEREBY DISCLAIMS EXPRESSLY ALL OTHER WARRANTIES AND CONDITIONS, WHETHER VERBAL OR WRITTEN, AND WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT, QUIET POSSESSION, CONDITION OF TITLE, CORRESPONDENCE TO DESCRIPTION, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF INFORMATIONAL CONTENT, ACCURACY OR COMPLETENESS OF RESPONSES, WORKMANLIKE EFFORT, AND/OR LACK OF NEGLIGENCE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE CUSTOM PARTS AND ANY ITEMS AFFIXED THERETO OR USED THEREWITH. NO VERBAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, LICENSORS, SUPPLIERS, DISTRIBUTORS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY. THIS WARRANTY DISCLAIMER AFFECTS YOUR LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

33. No Incidental, Consequential and Certain Other Damages. WHETHER RELATING TO THE AFOREMENTIONED LIMITED WARRANTY OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EMS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, LICENSORS, SUPPLIERS, DISTRIBUTORS, CO-BRANDERS OR OTHER PARTNERS, OR EMPLOYEES BE LIABLE, TO YOU OR TO ANY OTHER PARTY, FOR ANY GENERAL, SPECIAL, INCIDENTAL, PUNITIVE, DIRECT, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING, WITHOUT LIMITATION, THAT OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), OR FOR ANY CLAIM BY ANY THIRD PARTY, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE CUSTOM PARTS, THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR CUSTOMER SUPPORT OR OTHER SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS OF USE AND ORDER POLICIES. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF EMS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, LICENSORS, SUPPLIERS, DISTRIBUTORS, CO-BRANDERS OR OTHER PARTNERS, OR EMPLOYEES FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CUSTOM PARTS OR THESE TERMS OF USE AND ORDER POLICIES EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR THE PARTS PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES. ALL LIMITATIONS, EXCLUSIONS AND DISCLAIMERS UNDER THESE TERMS OF USE AND ORDER POLICIES SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND SHALL APPLY TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF EMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ANY REMEDY AVAILABLE FAILS ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

34. Indemnifications. Indemnification under the various indemnification provisions herein covers any and all claims, costs, demands, complaints, damages, assessments, actions, suits or other proceedings, liabilities, judgments, penalties, fines or amounts paid in settlement (collectively, “Claims”) and include, but are not limited to, all judgments, settlements, losses, liabilities, court/ADR costs, fines, attorney’s fees, penalties, and other litigation/negotiation/ADR costs and expenses arising out of, connected with or related to such Claims. The various indemnification provisions set forth in these Terms of Use and Order Policies shall survive the consummation or termination of the transactions contemplated by these Terms of Use and Order Policies.

35. Choice of Law; Venue. These Terms of Use and Order Policies shall be construed and enforced in accordance with the laws of the State of New Jersey, without regard to (i) conflicts of laws provisions of the State of New Jersey or any other jurisdiction; (ii) the U.N. Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; (iv) the 1980 Vienna Protocol amending the 1974 Convention, or (v) any amendment or protocol to the foregoing. Any and all actions to interpret, apply or enforce the provisions of these Terms of Use and Order Policies, or to assert or defend any claims or causes of action relating to these Terms of Use and Order Policies, or the Custom Parts, shall be brought in the Superior Court of the State of New Jersey, or in the United States District Court, District of New Jersey; the parties hereby unconditionally and irrevocably consent to the exclusive jurisdiction of and venue in such courts, and hereby irrevocably waive any objection based on forum non conveniens and any objection to the venue of any action instituted in such courts.

36. Entire Agreement. These Terms of Use and Order Policies, together with the EULA, represents the full and complete understanding of the parties with respect to the subject matter hereof, superseding all prior understandings, arrangements and representations, whether verbal, written, or presented online.

37. Severability. If and to the extent that any provision of these Terms of Use and Order Policies is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of these Terms of Use and Order Policies in any other jurisdiction.

38. Captions. The captions and numbering scheme of these Terms of Use and Order Policies are for convenience of reference only, and shall not define or limit any of the terms or provisions hereof.

39. Language. The English language version of these Terms of Use and Order Policies is legally binding in case of any inconsistencies between the English version and any translations. The parties hereto confirm that it is their wish that these Terms of Use and Order Policies, as well as other documents relating hereto, including Notices, have been and shall be written in the English language only. Remarque: Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.

40. No Waiver. No failure or delay by EMS in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof by EMS shall preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

41. No Verbal Modification. These Terms of Use and Order Policies may not be waived, amended or modified in any respect whatsoever, except by a written instrument, signed by all of the parties hereto. This “no oral modification” clause may not itself be waived, except by an written instrument signed by all of the parties hereto.

42. Succession. These Terms of Use and Order Policies are binding upon, and will inure to the benefit of, the parties hereto, their successors and their permitted assigns.

43. Subject to Change. EMS may change or modify these Terms of Use and Order Policies from time to time, with or without notice, with such revised terms applicable from the date posted at http://www.emachineshop.com/company/eusa.htm. By using or accessing the EMS website subsequent to the posting of any revised Terms of Use and Order Policies, You are deemed to have consented to such changes. Recheck the effective date of the Terms of Use and Order Policies, prior to placing each order, just to ensure that You have reviewed the version applicable to your transaction.

44. Effective Date. These Terms of Use and Order Policies are revised as of February 18, 2008. This revision supersedes all previous versions and revisions.