Terms of Use and Order Policies
We are delighted that you
have chosen to create 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 placement, 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 Micro Logic
Corp./eMachineShop.com (collectively, “EMS”) and (i) you in your
individual capacity and (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
(collectively, “You”).
ORDER BASICS — CREATION:
1. Acceptance of Terms. EMS’ acceptance of any order is expressly conditioned
upon your agreement to these Terms of Use and Order Policies. By placing
an order, You confirm that You have 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 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.
ORDER BASICS — CANCELING /
MODIFYING:
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.
CUSTOM PART DESIGN AND
MANUFACTURE:
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.
22. Designs and personal
information. You retain all rights
to, and EMS claims no rights in and to, Your submitted designs. EMS may
disclose to its employees and third parties such personal information as is
needed to perform services in connection with creating and shipping Your
order(s) and correcting technical issues. EMS will keep confidential your identity,
contact, payment and design file information except that your anonymous design
file, with self directed comments removed, may under some circumstances be
provided to EMS suppliers. Your personal information will be handled in
accordance with our Privacy Policy.
ORDER BASICS — DELIVERY
AND PAYMENT:
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. 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.
28. EXPORT CONTROL LAWS. You acknowledge that Custom Parts, and the
transactions contemplated by these Terms of Use and Order Policies, 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(-ies) in which the Custom Parts 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 United States’ current embargo restrictions include those against
Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. Compilations of
restricted end-users include but are not limited to those that are maintained
currently in 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.pst.ag/US-Statutorily-Debarred-Partie.71.0.html?&L=1). In
addition, the Custom Parts may not be exported, re-exported, or transferred to
an end-user engaged in activities related to illegal weapons, including but not
limited to weapons of mass destruction. Such activities also 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, biological or other
weapons. You shall indemnify and hold EMS harmless from all loss, damage,
expense or liability to any/all parties incurred in connection with, or as a
result of, such activities, or from the use of the Custom Parts in connection
with such activities, to the extent that such loss, damage, expense or
liability results—directly or indirectly—from any violation of this paragraph,
and/or any of the EULA’s restrictions. 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 illegal weapons (including but not limited 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,
among other things, the nature of the Custom Parts, and may change over time,
and that, to determine the precise controls applicable to each order of Custom
Parts, You must refer to the current U.S. Export Administration Regulations and
the U.S. Foreign Assets Control Regulations, as well as any other applicable
lists, laws and regulations. You agree not to provide any written regulatory
certifications or notifications on behalf of EMS. If delivery is to be made
outside the United States, You shall obtain and pay for any applicable permits,
licenses, and/or other governmental authorization(s), and You shall comply with
all laws and regulations of both the United States and the destination country.
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 paragraph are ongoing and shall survive the consummation
or termination of any transaction contemplated by these Terms of Use and
Order Policies.
PROBLEMS WITH YOUR ORDER:
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.
32. 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.
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.
WARRANTY / LIMITATION OF
LIABILITY:
34. Limited Warranty. Subject to Your compliance with the EULA and these Terms
of Use and Order Policies, EMS warrants to You, as 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, replacing or refunding, at
its option, any Custom Part that does not meet this Warranty, provided that You
have provided EMS with timely notice under Paragraph 32 and returned the Custom
Part(s) to EMS, transportation charges pre-paid, and provided that, upon EMS’
examination, the Custom Part, when tested within the specified ratings and in
accordance with good engineering practice, does not meet the Warranty contained
herein. EMS reserves the right to
require You to demonstrate that the Custom Parts are non-functional in their
intended application. In the event of Custom Part replacement, design changes
will not be accepted. If samples with non-conformities are approved by You,
pursant to Paragraph 32 or otherwise, then You shall accept subsequent
production runs with similar non-conformities. All Custom Parts are subject to
the tolerances and variations referred to in Paragraphs 15 and 30. 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.
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.
36. 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
ACTUALLY PAID BY YOU FOR THE PARTS PRINCIPALLY RESPONSIBLE FOR OR CONNECTED
WITH 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.
37. 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 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.
38. 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 in any way to these Terms of
Use and Order Policies, the Software and/or 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.
39. Entire Agreement. These Terms of Use and Order Policies,
together with the EULA, represent 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.
40. 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 jurisdiction.
41. 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. Words used in the
singular shall include the plural, words used in the plural shall include the
singular, the conjunctive shall include the disjunctive, and the disjunctive
shall include the conjunctive. Each covenant, term, and provision of these Terms
of Use and Order Policies shall be construed simply according to its
reasonable meaning, and not strictly for or against any party.
42. 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.
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.
44. 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.
45. 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.
46. 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 upon which they are posted at http://www.emachineshop.com/machine-shop/Terms-of-Use/page43.html
). By accessing the EMS
website or placing an order with the Software subsequent to the posting of any
revised Terms of Use and Order Policies, You are deemed to have
consented to such changes.
47. Effective Date. These Terms of Use and Order Policies are
revised as of February 20, 2013. This revision supersedes all previous versions
and revisions.
(c) Copyright 2013,
eMachineShop.com. All rights reserved
