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.
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 the EULA and each of its terms.
3. Placement of Orders. Placement of an order using the Software shall constitute an order to us, firstly, to test in broad terms the suitability of your design(s) for our fabrication, and, secondly, to produce such Custom Parts as EMS deems practicable 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 your spam filters. If You do not receive a confirmation e-mail, check your e-mail program's Junk folder. If you still do not see the 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. Due to the intentional similarity of many orders, EMS does not screen for duplicate orders. If You accidentally place a duplicate order, You must notify EMS immediately to cancel the duplicate order, otherwise all orders will be processed and charged.
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. 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 shipping and/or 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, and of course should, 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 be manufactured, and paid for, per the original terms of the order.
7. Software version. You agree to upgrade to the latest version of the CAD software prior to ordering. EMS shall not be liable for any errors caused by use of software versions other than the latest.
8. Checklist. During the order process the Software will provide you with general guidance in the form of a pre-order checklist. You agree to carefully review and attend to the checklist prior to placing your order. You also understand that no checklist can cover every possibility, and is to be supplemented with Your common sense and due care.
9. 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 progress, raw materials ordered, unamortized tooling, engineering, handling, overhead, production costs, and any other costs actually incurred by EMS in connection with the order, or portion(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 portion(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.
10. 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.
11. 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.
12. 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 context, 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.
13. 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.
14. Absent Specifications. The Software includes common specification parameters such as linear tolerance, flatness, surface roughness, etc. These built-in specifications are sufficient for a wide variety of parts. Nevertheless, no built-in list can cover all possible needs. For example, there are no built-in specifications for the angle of grain in a brush finish, the cleanliness of surfaces, weight and so on ad infinitum. It is Your responsibility to provide any necessary or desired specifications as special instructions, and You may not reject Custom Parts on the basis of specifications not explicitly stated in Your order.
15. 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 Y14.5-2009 and/or the Specifications section of the online help (currently located at http://www.emachineshop.com/machine-shop/Specifications/page717.html). You acknowledge and accept that there are normal variations in material properties, and that Your Custom Parts may vary within the range generally 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 desired, You must 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. You accept that errors in subtractive machining processes may occasionally be corrected by additive processes.
16. 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, omissions or ambiguities in your instructions.
17. 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 or performance. 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.
18. Assistance and Advice. EMS does not 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, other suitably trained professionals or resource materials. It is Your final responsibility to review carefully Your design, and You take any advice or suggestions provided by the Software or the EMS staff at Your own risk. You assume full final responsibility for checking correctness, dimensions, safety, applicability, and functionality, including but not limited to all aspects of the supplied checklist, and You accept the Custom Parts as if You independently created the design and performed all engineering Yourself, without assistance from EMS or the Software.
19. 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, or for use in aircraft flight, navigation, communication or ground support equipment, or 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 for use in 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.
20. Regulated Uses. You are solely responsible for assuring compliance with any and all statutory and/or regulatory requirements pertaining to the intended use of the Custom Parts, either as delivered to You or after having been incorporated into any system, product, device, apparatus, or mechanism, and You shall indemnify and hold EMS harmless from any Claims arising out of, connected with or related to Your failure to do so.
21. 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 Your original inventions/works of authorship, designed and created by You, which do not-by themselves, or as incorporated into any 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.
23. 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. If full payment for an order is not received at the time the order is ready to ship (e.g., credit card cannot be charged; payment by check not received), an Inventory Carrying Charge of 2% (or the maximum rate allowed by law, whichever is smaller) of that order's unpaid balance will be added, each month or portion thereof until full payment is received, without limiting EMS rights to pursue collection. In the event that full payment for an order is not received thirty (30) days after the order is ready to ship, EMS shall have the right, at any time thereafter, to sell or otherwise dispose of some or all of the items comprising that order. Proceeds from such sale/disposition shall first be used to pay the balance due on the order (including any accrued Inventory Carrying Charges) and to reimburse EMS for its actual expenses incurred in connection with such sale/disposition (which expenses are added to the unpaid balance as they are incurred). Any remaining proceeds will be returned to You. Any balance that remains unpaid after such sale/disposition shall continue to incur Inventory Carrying Charges until the balance has been reduced to zero. 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$50.00 fee will be charged for each returned check. A C.O.D. fee, which will vary depending upon the shipper and the size of the order, will be added to invoice shipping charges whenever appropriate. All orders placed outside the United States or Canada must be prepaid via wire transfer or check, in U.S. dollars. All payments must be received and cleared prior to release or shipment of Custom Parts. If a customer elects to have multiple orders consolidated into a single shipment to reduce shipping charges, each individual order will be charged as completed, even though these orders won't be shipped until the final order in the consolidated set of orders is completed. No product furnished by EMS shall become a fixture by reason of being attached to real estate. For Custom Parts manufactured with custom tooling, including but not limited to molding, blanking, casting, extrusion and forging, if samples are provided, your credit card will be charged (or payment must be made by other means) for the tooling and test run portion of the order prior to shipment of the samples.
24. Taxes. You are responsible for payment of any and all taxes, Custom duties, excise fees, or other imposts associated with your order.
25. 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. Since actual manufacturing costs (material, machining, labor, freight, etc) are mainly fixed at the time you choose a price/time combination, prices are not adjusted up or down based on early or late actual delivery time, even if the actual delivery time coincided with an alternate price/time combination.
26. Delivery Method. You may select the mode and port of shipment that You prefer or, at your option, EMS will select the fastest 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.
27. Title / Risk of Loss. Regardless of the method of delivery, all shipments are F.O.B. EMS New Jersey facility. Title and risk of loss or damage will pass from EMS to You upon delivery of the Custom Parts to the carrier.
29. CAD Warnings. The Software may provide warning messages. It is recommended that You resolve warnings prior to ordering. In the event that a problem occurs with Your Custom Parts relating to a warning that You did not resolve, You agree to accept those Custom Parts, regardless of whether they deviate from Your specifications. In the event that a problem occurs during manufacturing relating to a warning that You did not resolve, and EMS deems it appropriate to stop manufacturing Your Custom Parts, You will be responsible for payment of work done and all related costs actually incurred by EMS.
30. 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.
31. 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, and take plenty of suitably-lit, high-resolution photos of ALL sides of the packaging.
33. Returns. No Custom Parts may be returned without prior authorization from EMS. After You have provided EMS with the written notification described in Paragraph 32, 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 inadequate 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 from the date of delivery.
35. 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 of 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 PARAGRAPH 34 IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER 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 PARAGRAPH 34. 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, EMPLOYEES AND/OR SOFTWARE 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.
43. 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.
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