Terms of Use
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. Due to the intentional similarity of some orders, EMS does not check for duplicate orders. If You place a duplicate order You must notify EMS immediately to cancel the duplicate, otherwise the 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. 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.
6a. 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.
6b. Check list. - During the order process the CAD software provides you with and reminds you to use 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 common sense and care.
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. Absent Specifications. The CAD 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 such 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. You understand that it is Your responsibility, if needed, to provide any such specifications as special instructions and You agree not to reject parts on the basis of specifications not explicitly stated.
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. You accept that errors in subtractive machining processes may occasionally be corrected by additive processes.
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 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 suitable professionals or resource materials. It is your final 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. You assume full final responsibility for checking correctness, dimensions, safety, applicability, functionality, inclulding but not limited to all aspects of the supplied checklist and agree to accept parts manufactured and accept other responsibilities under the same conditions as if You independently created the design and performed all engineering Yourself, without assistance from EMS.
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. You retain all rights and EMS claims no rights in and to your submitted designs. EMS may disclose to its employees such Confidential Information as is needed to perform services in connection with Your order(s). EMS will keep confidential your identity, contact, payment and design file information except that your anonymous design file, with self directed comments removed, under some circumstances, may be provided to eMachineShop suppliers. Additionally Confidential Information may be provided with your written authorization or as requirement by law.
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. For 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.
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. 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.
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:
24b. CAD Warnings. The Software may provide warning messages. It is recommended to resolve warnings prior to ordering. If a problem occurs during manufacturing relating to a warning you did not resolve and EMS chooses to finish making your parts you agree to accept parts that may deviate from specifications. If a problem occurs during manufacturing relating to a warning you did not resolve and EMS deems it appropriate to stop manufacturing your parts you will be responsible for payment of work done.
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 You is your responsibility. Loss
or damage that occurs during shipping by a carrier selected by EMS is
EMS’s responsibility provided: You note any shortage or damage on both Your copy and the carriers copy of the carrier's receipt freight bill or delivery memo and cause both copies to be signed by the carrier's driver or representative and EMS establishes to reasonable satisfaction that there was in fact a shortage in the delivery or that the damage occurred prior to receipt of the material by You. Loss
or damage covered by EMS shall be remedied solely by replacement of
the lost or damaged Custom Parts.
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, 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 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. Additionally, in the event of non-conformance, prior repairing, replacing or refunding EMS reserves the right to require You to show that the parts are non-functional in their intended application. In the event of a remake, design changes will not be accepted. If samples with non-conformances are provided and approved by You, You shall accept subsequent production runs with similar non-conformances. 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. 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. Prior to placing each order ensure that You have reviewed the latest version by rechecking the effective date of the Terms of Use and Order Policies on the EMS web site.
44. Effective Date. These Terms of Use and Order Policies are revised as of July 22, 2011. This revision supersedes all previous versions and revisions and supersedes the copy provided with software downloads.
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