Terms and Conditions of Use

LAST UPDATED: JULY 26, 2017

These Terms and Conditions of Use apply to the website located at [shop.url] (the “Site”).

E. Mishan & Sons, Inc. (“Emson”) provides this Site for purchasing products and services subject to the following terms and conditions. By accessing or using this Site, including the purchase of products and services, you agree to be bound by these Terms and Conditions of Use. Your use of this Site is subject to our Privacy Policy. Please review the policy for more on how we collect and use information. If you are unwilling to be bound by these Terms and Conditions of Use and Privacy Policy, you should not access or use this Site.

1. LIMITATION OF LIABILITY

THE SITE AND ALL PARTS THEREOF ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. EMSON MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT IT WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE.

IN ALL CIRCUMSTANCES EMSON'S MAXIMUM LIABILITY IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCTS SOLD. EMSON SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE UPON A CLAIM OR ACTION IN CONTRACT, TORT, INDEMNITY OR CONTRIBUTION, OR OTHER CLAIMS RELATING TO THE PRODUCTS IT SELLS WHICH EXCEEDS THIS LIABILITY LIMIT. EMSON SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR DAMAGES AGAINST THE CUSTOMER, OR FOR MALFUNCTION, DELAYS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS, LOSS OR DAMAGE TO EXEMPLARY DAMAGES, WHETHER OR NOT EMSON HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES. EMSON SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EMSON WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ATTRIBUTABLE TO YOUR USE OF THE SITE OR ANY PRODUCT OR SERVICE PURCHASED THE SITE.

2. SITE INFORMATION

We make reasonable efforts to accurately display the attributes of the products we sell. We do not warrant that product descriptions or other content is accurate, complete, or error free. Prices and promotions are subject to change. Sometimes an item may not be available, the offer may have been misstated, or an item may be mispriced. For any of these reasons, we may cancel your order or we may contact you for instructions on the order. If a product offered by Emson is not as described, you may return it according to our return policy. If you are dissatisfied with the Site, the Site content, or the Terms and Conditions of Use or Privacy Policy, you agree that your sole and exclusive remedy is that you may discontinue using the Site.

3. INTELLECTUAL PROPERTY

This Site and all content included on or in the Site, including text, images, videos, information, data, software, photographs, graphs, videos, graphics, music, sounds and other material (collectively "Content") may be protected by trademark, copyright and/or other proprietary rights owned by Emson, and these rights are valid and protected in all forms, media and technologies existing now or developed in the future. You may not use the Content or any part thereof for your own purposes. You may not remove or modify any copyright, trademark or other proprietary notice contained in any Content. You may not modify or alter the Content, copy or post the Content, or broadcast the Content in any media.

4. ORDER POLICY & SHIPPING

Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Emson reserves the right at any time after receipt of your order to accept or decline your order for any reason. Emson reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item with the appropriate price adjustment. We may require additional verification or information before accepting any order. All orders placed on this Site are subject to product availability. All items purchased from Emson are sent by a third-party carrier. If you are not fully satisfied with your purchase, you may return it in accordance with our return policy.

5. ARBITRATION AGREEMENT

Any dispute relating in any way to these use of the this Site, to these Terms and Conditions of Use, to the Privacy Policy, to our advertising or solicitation practices or to the products or purchase that you purchase through the this Site, shall be resolved by mandatory arbitration before a single impartial arbitrator pursuant to proceedings administered by the American Arbitration Association under its rules for resolution of commercial disputes, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of New York, and you consent to exclusive jurisdiction and venue in such courts. Arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitration shall take place in New York, New York. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. YOU AND EMSON AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, whether through class arbitration proceedings or otherwise. The arbitrator shall have no power to add to, subtract from, disregard, alter or modify any of the terms of the Terms and Conditions or the Privacy Policy. Any claim or controversy as to the enforceability of this arbitration provision’s restriction on your right to participate in or pursue a class action or class wide arbitration shall be brought only in the United States District Court for the Southern District of New York or any court of the State of New York located in New York County, New York. You agree that, by entering into this Agreement, you are waiving the right to a trial by jury or to participate in a class action or representative action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.

6. APPLICABLE LAW

The laws of the State of New York, without regard to principles of conflict of laws, will govern these Terms and Conditions of Use and any dispute of any sort that might arise between Emson and You.

7. SEVERABILITY

If any provision contained in this agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of this agreement, and the invalid, illegal, or unenforceable provision shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable law.

8. WAIVER

The failure of either party to require performance by the other party of any provision of this agreement shall not affect in any way the first party's right to require such performance at any time thereafter. Any waiver by either party of a breach of any provision in this agreement shall not be taken or held by the other party to be a continuing waiver of that provision unless such waiver is made in writing.

9. ENTIRE AGREEMENT

These Terms and Conditions of Use are the complete and exclusive agreement between us, and they supersede all prior or contemporaneous proposals, oral or written, understandings, representations, conditions, warranties, and all other communications between us relating to the subject products. This agreement may not be explained or supplemented by any prior course of dealings or trade by custom or usage.

 

 

 

 

Arbitration Agreement

IMPORTANT NOTICE ABOUT YOUR RIGHTS – PLEASE READ

THIS ARBITRATION AGREEMENT (“AGREEMENT”) SHALL GOVERN THE MANNER BY WHICH ANY CLAIMS REGARDING THE PRODUCT(S) YOU PURCHASE FROM US SHALL BE RESOLVED. THIS AGREEMENT SETS FORTH IMPORTANT LEGAL RIGHTS. PLEASE READ THIS AGREEMENT CAREFULLY.

BY ORDERING A PRODUCT FROM US, YOU UNDERSTAND AND AGREE THAT ANY DISPUTE BETWEEN US CONCERNING SUCH PRODUCT SHALL BE SETTLED BY BINDING INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND AS SUCH, YOU WAIVE YOUR RIGHT TO A JURY TRIAL. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE IN OR REPRESENT A CLASS OF CONSUMERS IN SUCH DISPUTES. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST RETURN THE PRODUCT WITHIN FIFTEEN (15) DAYS OF YOUR RECEIPT OF THE PRODUCT.

1. RESOLUTION BY BINDING ARBITRATION. Any claim or dispute between you and us, or any of our subsidiaries or affiliates, arising out of or relating in any way to the Product or this Agreement shall be resolved through final, binding arbitration. This arbitration obligation applies regardless of whether the claim or dispute involves a tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory. You specifically acknowledge and agree that you waive your right to bring a lawsuit based on such claims or disputes and to have such lawsuit resolved by a judge or jury.

2. WAIVER OF CLASS PARTICIPATION. All arbitrations under this Agreement shall be conducted on an individual (and not a class-wide) basis, and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that this Agreement specifically prohibits you from commencing arbitration proceedings as a representative of others or joining in any arbitration proceedings brought by any other person. You also acknowledge and agree that you are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, and/or to participate as a member of a class of claimants in any lawsuit filed against us and/or related third parties.

3. ARBITRATION PROCEDURES.

  • A. Before commencing any arbitration proceedings under this Agreement, you must first present the claim or dispute to us by calling our Legal Representative toll free at 800-423-4248 and providing all requested information. You may be required to provide us with a written statement setting forth the nature of your claim or dispute. We shall have forty-five (45) days from the receipt of such call (or written statement) to resolve such claim or dispute (“Resolution Period”). If your claim or dispute is not resolved within the Resolution Period, you may commence arbitration proceedings in accordance with the terms of this Agreement.
  • B. The arbitration of any claim or dispute under this Agreement shall be conducted pursuant to the American Arbitration Association’s (“AAA”) United States Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes. These rules and procedures are available by calling the AAA or by visiting its web site at www.adr.org.
  • C. The arbitrator shall not conduct class arbitration; that is, the arbitrator shall not allow you to serve as a representative, as a private attorney general, or in any representative capacity for others in the arbitration.
  • D. The arbitration of any claim or dispute under this Agreement shall be conducted in the New York County, New York State.

4. COSTS. All administrative expenses of the arbitration proceedings commenced under this Agreement shall be as follows:

  • A. If the claim or dispute that is the subject of the arbitration proceedings is less than five thousand dollars (US $5,000), your financial responsibility for the administrative costs shall not exceed One Hundred Dollars ($100);
  • B. If the claim or dispute that is the subject of the arbitration proceedings is between five thousand dollars (US $5,000) and fifty thousand dollars (US $50,000), your financial responsibility for administrative costs shall not exceed Three Hundred Dollars ($300); and
  • C. If the claim or dispute that is the subject of the arbitration proceedings exceeds $50,000, your financial responsibility for administrative costs shall be in accordance with the Commercial Fee Schedule provided by the AAA.
  • D. Each party shall pay the fees and costs of its own counsel, experts and witnesses.

5. SMALL CLAIMS. All parties shall retain the right to seek adjudication in a small claims tribunal in the county of your residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute that cannot be adjudicated within the jurisdiction of a small claims tribunal shall be resolved by binding arbitration as described in and in accordance with, the terms of this Agreement. Any appeal of a judgment from a small claims tribunal shall be resolved by biding arbitration under the terms of this Agreement.

6. SEVERABILITY. If any provision of this Agreement is declared or found to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions shall remain fully enforceable.

 

Arbitration Agreement

IMPORTANT NOTICE ABOUT YOUR RIGHTS – PLEASE READ

THIS ARBITRATION AGREEMENT (“AGREEMENT”) SHALL GOVERN THE MANNER BY WHICH ANY CLAIMS REGARDING THE PRODUCT(S) YOU PURCHASE FROM US SHALL BE RESOLVED. THIS AGREEMENT SETS FORTH IMPORTANT LEGAL RIGHTS. PLEASE READ THIS AGREEMENT CAREFULLY.

BY ORDERING A PRODUCT FROM US, YOU UNDERSTAND AND AGREE THAT ANY DISPUTE BETWEEN US CONCERNING SUCH PRODUCT SHALL BE SETTLED BY BINDING INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND AS SUCH, YOU WAIVE YOUR RIGHT TO A JURY TRIAL. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE IN OR REPRESENT A CLASS OF CONSUMERS IN SUCH DISPUTES. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST RETURN THE PRODUCT WITHIN FIFTEEN (15) DAYS OF YOUR RECEIPT OF THE PRODUCT.

1. RESOLUTION BY BINDING ARBITRATION. Any claim or dispute between you and us, or any of our subsidiaries or affiliates, arising out of or relating in any way to the Product or this Agreement shall be resolved through final, binding arbitration. This arbitration obligation applies regardless of whether the claim or dispute involves a tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory. You specifically acknowledge and agree that you waive your right to bring a lawsuit based on such claims or disputes and to have such lawsuit resolved by a judge or jury.

2. WAIVER OF CLASS PARTICIPATION. All arbitrations under this Agreement shall be conducted on an individual (and not a class-wide) basis, and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that this Agreement specifically prohibits you from commencing arbitration proceedings as a representative of others or joining in any arbitration proceedings brought by any other person. You also acknowledge and agree that you are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, and/or to participate as a member of a class of claimants in any lawsuit filed against us and/or related third parties.

3. ARBITRATION PROCEDURES.

  • A. Before commencing any arbitration proceedings under this Agreement, you must first present the claim or dispute to us by calling our Legal Representative toll free at 800-423-4248 and providing all requested information. You may be required to provide us with a written statement setting forth the nature of your claim or dispute. We shall have forty-five (45) days from the receipt of such call (or written statement) to resolve such claim or dispute (“Resolution Period”). If your claim or dispute is not resolved within the Resolution Period, you may commence arbitration proceedings in accordance with the terms of this Agreement.
  • B. The arbitration of any claim or dispute under this Agreement shall be conducted pursuant to the American Arbitration Association’s (“AAA”) United States Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes. These rules and procedures are available by calling the AAA or by visiting its web site at www.adr.org.
  • C. The arbitrator shall not conduct class arbitration; that is, the arbitrator shall not allow you to serve as a representative, as a private attorney general, or in any representative capacity for others in the arbitration.
  • D. The arbitration of any claim or dispute under this Agreement shall be conducted in the New York County, New York State.

4. COSTS. All administrative expenses of the arbitration proceedings commenced under this Agreement shall be as follows:

  • A. If the claim or dispute that is the subject of the arbitration proceedings is less than five thousand dollars (US $5,000), your financial responsibility for the administrative costs shall not exceed One Hundred Dollars ($100);
  • B. If the claim or dispute that is the subject of the arbitration proceedings is between five thousand dollars (US $5,000) and fifty thousand dollars (US $50,000), your financial responsibility for administrative costs shall not exceed Three Hundred Dollars ($300); and
  • C. If the claim or dispute that is the subject of the arbitration proceedings exceeds $50,000, your financial responsibility for administrative costs shall be in accordance with the Commercial Fee Schedule provided by the AAA.
  • D. Each party shall pay the fees and costs of its own counsel, experts and witnesses.

5. SMALL CLAIMS. All parties shall retain the right to seek adjudication in a small claims tribunal in the county of your residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute that cannot be adjudicated within the jurisdiction of a small claims tribunal shall be resolved by binding arbitration as described in and in accordance with, the terms of this Agreement. Any appeal of a judgment from a small claims tribunal shall be resolved by biding arbitration under the terms of this Agreement.

6. SEVERABILITY. If any provision of this Agreement is declared or found to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions shall remain fully enforceable.

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