EMSON TERMS AND CONDITIONS OF USE

Last updated April 24, 2020

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

E. Mishan & Sons, Inc. (“Emson”) provides this Site for advertising, marketing and 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 and California Consumer Privacy Act Disclosures.  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, Privacy Policy and California Consumer Privacy Act Disclosures, you must not access or use this Site.

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, PUNITIVE OR CONSEQUENTIAL DAMAGES ATTRIBUTABLE TO YOUR USE OF THE SITE OR ANY PRODUCT OR SERVICE PURCHASED THE SITE.

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.

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.

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.

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 servies 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 for consumer disputes.  The arbitration shall take place in New York, New York before a single arbitrator.  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.

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.

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.

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.

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.