Last Updated: August 1, 2024

Welcome to ElectricMotorShop.com! The following terms, conditions, and notices contained or referenced herein (“Terms of Use,” or this “Agreement”) govern your use of the services provided by Electronic Motor Shop (“EMS,” “we,” “us,” and “our”) described below and such other services that may be offered by EMS from time to time (“EMS Services” or “Services”). This Agreement is a legal and binding agreement between you (also referred to herein as “user,” or “customer”) and EMS. By signing up to use an EMS account, accessing our online store, or by using any service we offer through ElectricMotorShop.com or any other EMS website, including our e-commerce site (collectively the “EMS Site,” or the “Site”), you agree that you have read, understand, and accept all of the terms and conditions contained in this Agreement including the Appendices, our Privacy Policy, and our Cookie Policy.

Amendment of these Terms: We may amend or modify this Agreement at any time by posting the revised agreement on the EMS Site and/or providing a copy to you (a “Revised Agreement”). The Revised Agreement shall be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of a Revised Agreement constitutes your acceptance of such Revised Agreement. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your EMS Account(s) (as defined below).

Dispute Resolution: PLEASE BE AWARE THAT SECTION 14 (CUSTOMER FEEDBACK, QUERIES, COMPLAINTS, AND DISPUTE RESOLUTION) AND APPENDIX 1 OF THIS AGREEMENT, CONTAIN PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND EMS. AMONG OTHER THINGS, APPENDIX 1 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION.  APPENDIX 1 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ SECTION 14 AND APPENDIX 1 CAREFULLY.

NOTICE FOR CALIFORNIA RESIDENTS: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the EMS Site, please contact us. You may also contact us by writing to Electric Motor Shop, Attn: Legal, Electric Motor Shop, 253 Fulton Street, Fresno, CA 93721. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by phone at (916) 445-1254 or (800) 952-5210.

1. User’s Acknowledgment and Acceptance of Terms

EMS provides the EMS Site and Services subject to your compliance with all the terms, conditions, and notices contained or referenced in this Agreement, as well as any other written agreement between us and you (or your company). In addition, when using particular services, information, or materials on the Site, users shall be subject to any posted guidelines or rules applicable to such services or materials that may contain terms and conditions in addition to those in this Agreement. All such guidelines or rules are hereby incorporated by reference into this Agreement.

BY SIGNING UP FOR AN EMS ACCOUNT AND/OR USING THE SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE EXIT THE SITE NOW. YOUR REMEDY FOR DISSATISFACTION WITH THE SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THE SITE, IS TO STOP USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS OF USE BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THE SITE.

You acknowledge and agree that it is your responsibility to review the EMS Site and this Agreement periodically and to be aware of any modifications or changes to this Agreement.

As used in this Agreement, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, service providers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering the EMS Site and/or its contents.

2. Description of Services

We make various services available on the EMS Site including, but not limited to product pricing information and ecommerce services. You are solely responsible for providing, at your own expense, all equipment necessary to use the Services, including a computer and your own Internet access (including payment of telephone service fees associated with such access, if any).

We reserve the sole right to either modify or discontinue the Site or Services, including any features therein or thereof, at any time with or without notice to you. We shall not be liable to you or any third party should we exercise such right. Modifications may include, but are not limited to, changes in the pricing structure, or the addition of fee-based services. Any new features that augment or enhance the then-current services on the EMS Site shall also be subject to this Agreement.

You understand and agree that temporary interruptions of the Services available through the Site may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of your use of the Site, and therefore, delays and disruption of other network transmissions are completely beyond our control.

You understand and agree that the Services available on the EMS Site are provided “AS IS” and that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.

3. Account Setup

3.1. Eligibility. To be eligible to use the EMS Services, you must be at least 18 years old, and reside in the United States.  There are certain features which may or may not be available to you depending on your location and other criteria. 

3.2. Registration of EMS Account. You must register for an EMS account, or provide information to permit the creation of a Guest account in order to use the EMS Services (“your account” or “EMS Account”). You will need to complete certain verification procedures before you are permitted to use the EMS Services. By registering or using an EMS Account you agree and represent that you have created your account and you will use your EMS Account only for yourself (or your company), and not on behalf of any third party, unless you have obtained prior written approval from EMS. You are fully responsible for all activity that occurs under your EMS Account. We may, in our sole discretion, refuse to open an EMS Account, suspend or terminate any EMS Account.

3.3. Consent to Access, Processing and Storage of Your Personal Data and Identity Verification. During registration for your EMS Account, or at any other time deemed necessary by EMS, you agree to provide us with the information we request for the purposes of identity verification, and providing EMS Services to you. The information we request may include certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, and date of birth.

You consent to us accessing, processing and retaining any personal information you provide to us for the purpose of us providing the Services to you. This consent is not related to, and does not affect, any rights or obligations we or you have in accordance with data protection laws, privacy laws and regulations. You can withdraw your consent at any time by closing your account with us. We may retain and continue to process your personal information if we reasonably believe it is necessary in order to comply with laws or regulations. In providing us with this or any other information that may be required, you confirm that the information is accurate and authentic. You agree to keep us updated if any of the information you provide changes. We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. For more information on how we process your personal data and the rights you have in respect of this, see our Privacy Policy and Cookie Policy.

3.4. Access. The EMS Services can be accessed directly using the EMS Site. Access to the Services may become degraded or unavailable from time to time. Although we strive to provide you with excellent service, we do not represent that the EMS Site, Services, or other EMS services will be available without interruption and we do not guarantee that any product order or request will be received, accepted, recorded, or processed. EMS shall not be liable for any losses resulting from or arising out of delays in processing transactions, inability to process transactions, or lack of timely response from EMS customer support. 

3.5. Password Security; Contact Information. You are responsible for creating a strong password and maintaining security and control of any and all electronic devices, IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access the EMS Services. Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your EMS Account by third-parties and the loss or theft of any information associated with your EMS Account and any associated accounts. EMS will not monitor or protect your password, and you may be required to change it if EMS suspects the security of the EMS Site, e-commerce site or platform, network, data, or computer system has been compromised. You must use a password that EMS deems secure and change it periodically, or EMS reserves the right to terminate your account.

The use of tools or programs designed to compromise the EMS Site (password-breaking software, hacking tools, or unwanted probes) is strictly prohibited. By using the EMS Site and Services, you agree to take the appropriate actions to maximize the security of your own account information, as well as cooperate with EMS employees and security staff if a breach of security is discovered. You are prohibited from compromising security, tampering with system resources, or willingly releasing account details to unauthorized parties. EMS reserves the right to investigate any violation or breach of security by releasing personal details to system administrators or legal authorities in order to resolve security incidents.

In the case of a court or administrative agency order or other legal inquiry, EMS reserves the right to comply and cooperate with law enforcement and satisfy such requests for user information. If requested for legal purposes, EMS may disclose such information as names, user account details, messages, or any proof of violation of the Terms of Use. By using the EMS Site, you release EMS and the Indemnified Parties from any liability for losses or damages resulting from the compliance of EMS with such orders or inquiries, which are taken as a consequence of your activity on the EMS Site, or your use of the Services provided through the Site.

You are responsible for keeping your email address and telephone number up to date in order to receive any notices or alerts that we may send you. You should never allow remote access or share your computer and/or computer screen with someone else when you are logged on to your EMS Account. EMS will never under any circumstances ask you for your passwords or 2-factor authentication codes. We assume no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of EMS. We further assume no responsibility for your failure to follow or act on any notices or alerts that we may send to you. In the event you believe your EMS Account information has been compromised, contact EMS Support immediately internet.sales@electricmotorshop.com or (800) 970-5859.

3.6. Consent to Receive Text Messages. By opting in to receive text messages from EMS, you verify that the mobile number provided to EMS is true and accurate and that you are the current subscriber or owner of any telephone number that you provide. By voluntarily providing your telephone number(s) and opting in to receiving text messages from EMS, you expressly agree to receive recurring automated text messages (such as SMS, MMS, or successor protocols or technologies) from EMS and understand that consent is not required to make any purchase. Message and data rates may apply and the frequency of messages varies. Your consent to receive automated texts is completely voluntary. You may opt-out at any time by replying STOP or receive support by replying HELP to any mobile message from us. EMS, carriers and other service providers which support EMS in delivering text messages are not responsible for any delayed or undelivered text messages. You agree to indemnify, defend, and hold harmless EMS for any claims, losses, liability, costs and expenses (including reasonable attorneys’ fees) arising from any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or any state law equivalents, including claims relating to your voluntary provision of a telephone number that is not owned by you. You can contact us via email at internet.sales@electricmotorshop.com or by phone at (800) 970-5859. Opt-in consent for text messages is not shared with any third party, except telecommunication technology providers (e.g., aggregators and providers of text message services) as defined in our Privacy Policy.

4. Website Accuracy

Although we intend to provide accurate and timely information on the EMS Site, the Site, including, without limitation, the Content (defined below) may not always be entirely accurate, complete, or current, and may also include technical inaccuracies or typographical errors. In an effort to continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including without limitation information, regarding our policies, products and services. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the EMS Site are your sole responsibility and EMS shall have no liability for such decisions.

Information provided by third parties, including pricing and supply data for products that may be available on the EMS Site is for informational purposes only and EMS makes no representations or warranties to its accuracy. Links to third-party materials (including without limitation, websites) may be provided as a convenience but are not controlled by us. You acknowledge and agree that we are not responsible for any aspect of the information, content, or services contained in any third-party materials or on any third-party sites accessible from or linked to the EMS Site.

5. Restrictions on Useand Access

5.1. Communication Services. By using the communication services, bulletin boards, forums, and any other messaging systems provided on the EMS Site, you agree to use such services only for their intended purposes and according to these Terms of Use. You will not post, send, submit, publish, or transmit any of the following on the EMS Site:

• Proprietary material or intellectual property belonging to EMS or a third party
• Materials describing or advocating for illegal activity or expressing the desire or intent to commit a crime
• Vulgar, obscene, or pornographic material
• Threats, abuse, libel, defamation, harassment, or threatening or offensive language
• Materials that harm or exploit children and minors
• Names, phone numbers, addresses, email addresses, or other personal details of any third party
• Misleading or exploitative content, or any material that impersonates or misrepresents another entity or person
• Material that is not properly attributed to the appropriate author or legal owner
• Material consisting of personal or commercial solicitations, “spam,” chain letters, or any other mass messaging
• Material that contains malware, viruses, or any other destructive mechanism that poses a risk to the EMS Site
• Solicitations for political campaigns or a political candidate

EMS reserves the right to monitor the use of its websites and other digital platforms to ensure compliance with this Agreement. EMS reserves the right to remove any content which violates this Agreement and to restrict the access of users who refuse to follow the guidelines outlined herein. EMS may disclose to third parties, including law enforcement personnel, as much information as necessary to satisfy applicable law and the orders of any court or administrative agency, and to ensure the safety of the business, customers, and employees of EMS. EMS will remove, or deny the use of any materials from the EMS Site that do not satisfy the requirements outlined in this Agreement.

5.2. Co-Branding, Framing, Hyperlinking. By accessing the EMS Site, you agree that you will only use the Site for its intended purposes and avoid engaging in behavior that is unlawful or violates this Agreement. You may not, under any circumstances, co-brand, frame, or hyperlink to the EMS Site, unless EMS allows you to do so, which decision shall be made by EMS at its own sole discretion. These behaviors are defined as follows:

• “Co-branding”: You will not display the EMS brand, trademarks, or logos on any website not affiliated with EMS or one of its various partners.
• “Framing”: You will not frame the EMS Site within any structure or navigation element of a website not affiliated with EMS or one of its Affiliates.
• “Hyperlinking”: You will not provide a hyperlink to the EMS Site on an unaffiliated website, unless you are allowed to do so by EMS at its own sole discretion.

You agree to cooperate with EMS and immediately cease any instances of branding, framing, or unauthorized hyperlinking upon request. You also agree to avoid acting in a manner that disables, overburdens, damages, or impairs the ability of others to use the EMS Site. You may not access, or attempt to access, information or confidential materials which are not intentionally made available to you through the EMS Site. EMS and its Affiliates reserve the right to refuse service, suspend or terminate customer accounts, and/or cancel orders deemed necessary, if, but not limited to, situations in which customer conduct is determined to be in violation of local, state, or federal laws or is damaging to EMS’s best interests.

5.3. Termination or Restriction of Access. You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the EMS Site with or without notice and for any reason, including, without limitation, breach of this Agreement. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your account and EMS Site access, and may be referred to appropriate law enforcement authorities.

Upon termination or suspension of your EMS Account or Site access, regardless of the reasons therefore, your right to use the Services available on the Site immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your EMS Account and all related information and files in your account and/or bar any further access to such files or the Site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.

6. Limited License

All materials, information, and content, including text, graphics, logos, images, video, button icons, audio clips, digital downloads, and data compilations on or accessible from the EMS Site and any other website or digital platform owned, operated, licensed, or otherwise controlled by EMS (the “Content”) is owned or licensed property of EMS, or its Affiliates or content suppliers, and protected by United States and international copyright laws. The Content expressly includes trademarks, service marks, logos, and copyrighted works belonging to EMS and its Affiliates. We grant you a limited, nonexclusive, nontransferable license, subject to the terms of this Agreement, to access and use the Services, Site, and Content solely for the purposes of shopping and information resources. Users are not allowed to copy, download, duplicate, modify, reproduce, modify, distribute, or republish the Content, nor any portion thereof, without the express written permission of EMS. Any other use of the Content is expressly prohibited and all other right, title to, and interest in the Content, Site, or Services is exclusively the property of EMS and its licensors.

You agree you will not copy, transmit, upload, post, distribute, sell, license, reverse engineer, modify, publish, participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part, without the prior written consent of EMS. You may print out a copy of the Content solely for personal use; however, in doing so, the Content may not be removed or altered, or caused to be removed or altered, including any copyright, trademark, trade name, service mark, or other proprietary notice or legend appearing on the Content. Modification or use of the Content except as expressly provided in this Agreement violates the intellectual property rights of EMS. Neither title nor intellectual property rights are transferred to anyone accessing the Site.

“Electricmotorshop.com,” and the following non-exhaustive list, including “Electric Motor Shop” and the EMS Logo; and without limitation, any graphics, logos, button icons, and service names included in or made available through any Content, as well as all logos related to the EMS Services or displayed on the EMS Site are either trademarks or trade dress of EMS or its licensors in the United States and other countries. You may not copy, imitate or use them without EMS’s prior written consent for any purpose, including without limitation, in: connection with any product or service that is not authorized by EMS; any manner that is likely to cause confusion among customers; or a way that disparages or discredits EMS.

7. Submissions

By submitting content to EMS through the EMS Site, you grant EMS the worldwide, royalty-free, sub-licensable, non-cancellable, and non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, and display comments, reviews, ideas, and feedback through the Site. EMS also reserves the right to incorporate such content into other forms of media or technology to further its business objectives. Such submissions may not be considered confidential and may be used in marketing materials, products, or advertising without incurring any liability for royalties. EMS will handle the security of personal information and details according to its Privacy Policy.

8. Links, Hyperlinks, and Third-Party Applications

The EMS Site may be hyperlinked by other websites not owned or maintained by EMS or its Affiliates. The Site may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. EMS provides hyperlinks as a convenience to its customers and website users, and links to third party websites do not represent an endorsement of other organizations, their products, or their services by EMS.

If, to the extent permitted by EMS from time to time, you grant express permission to a third party to access or connect to your EMS Account(s), either through the third party’s product or service or through the EMS Site, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. You are fully responsible for all acts or omissions of any third party with access to your EMS Account(s). Further, you acknowledge and agree that you will not hold EMS responsible for, and will indemnify EMS from, any liability arising out of or related to any act or omission of any third party with access to your EMS Account(s).

9. EMS Digital Platform E-Commerce Services

9.1. Pricing. Although EMS has made every effort to display the products on our Site as accurately as possible, EMS cannot guarantee that the user’s monitor will accurately portray the actual color of the products displayed on the EMS Site. Products displayed may be out-of-stock or discontinued, and prices are subject to change. EMS is not responsible for typographical errors regarding price or any other matter.

EMS does not provide a price match or low price guarantee when you make a purchase from our digital ecommerce platform (online store). Because actual pricing and sales tax costs vary from location to location, EMS also does not guarantee the actual pricing for products sold at any EMS stores. Your final total for purchases that you make online, or at any of our retail locations, may not reflect the same dollar amount that you would pay at another one of our stores.

9.2. Clearance and Promotional Items. Clearance prices are only good while supplies last, and are provided on a first come, first served basis. EMS does not offer back orders or rain checks on clearance items. Our stores are not able to order, restock, or transfer in any clearance items, and EMS does not substitute any other items for a clearance-priced item. Other sales, discounts, or promotional codes will not be applied to clearance pricing, and EMS does not offer large quantity discounts. Clearance items are not eligible for, or count toward, any shipping promotions or discounts, even when combined with other items in your order. EMS does not ship any clearance item, part, or product to another store.

All sales for clearance items are final, and clearance items are sold “as is.” Clearance items cannot be returned or refunded. EMS does not guarantee that the quantity of clearance items you order will be shipped. All quantities shown for clearance items are estimates, and if EMS does not have the quantities you request when your order is processed, you will receive the quantities available to ship.

9.3 Ordering. At the time you place your order, our system will validate the credit card information you provided. If the information you provided during checkout fails to coincide with the information on file for the credit card you used, our security system will deny your order. If the information you provided is accurate, your credit card will be charged for the full amount of your order on the day that your order is shipped.

9.4. Limitations on Quantity. The EMS Site is intended for personal, noncommercial purposes. We reserve the right to prohibit purchases by dealers or resellers. A dealer or reseller is defined as a company or an individual that purchases goods with the intention of reselling them rather than using them. In addition, we reserve the right to limit quantities on orders placed by the same account, on orders placed by the same credit card, and on orders that use the same billing or shipping address. We will notify you if such limits are applied.

9.5. Tracking Information Legal Restrictions. EMS may provide you with tracking information obtained through various shipping services for the purpose of tracking orders mailed to you pursuant to your use of the EMS Site or Services. Any package tracking system and tracking information obtained through the shipping service are the sole property of the third party shippers respective services. You will not use these tracking systems for purposes not permitted by this Agreement. Any unauthorized use of these services, other than to track shipments to you, will be considered a violation of these Terms of Use.

You shall not publish, distribute, copy, store, use, or sell such tracking information for commercial gain without the express consent of the applicable shipper(s). The respective tracking systems are provided as a service, and any access or use of these systems that violates this Agreement is strictly prohibited.

10. Privacy Statement

For more information on EMS privacy practices and policies, please see our Privacy Policy.

11. Contact Information

Except as explicitly noted on the EMS Site, the services available through the Site are offered by Electric Motor Shop, located at 253 Fulton Street, Fresno, CA 93721. Our telephone number is (800) 970-5859. If you notice that any user is violating this Agreement, please contact us at internet.sales@electricmotorshop.com

12. Notices

All notices to a party shall be in writing and shall be made either via e-mail or conventional mail. Notices to EMS must be sent to the attention of Customer Service at internet.sales@electricmotorshop.com, if by e-mail, or at Electric Motor Shop, 253 Fulton Street, Fresno, CA 93721, if by conventional mail. Notices to you may be sent either to the e-mail address supplied for your account or to the address supplied by you as part of your EMS Account registration data. In addition, we may broadcast notices or messages through the Site to inform you of changes to the Site or other matters of importance, and such broadcasts shall constitute notice to you.

Any notices or communication under this Agreement will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed e-mail.

13. Liabilities & Indemnification

13.1. Release of EMS; Indemnification. If you breach or violate this Agreement or the Privacy Policy, or use any EMS Content for a purpose not explicitly authorized by EMS in this Agreement, you agree to release, defend, indemnify, and hold harmless EMS and the Indemnified Parties (defined below) from responsibility for such breaches and violations. You agree that EMS and the Indemnified Parties will have no liability for any resulting losses, damages, judgments, awards, costs, expenses, and attorney’s fees in connection with such breach or unauthorized use, and you will release, defend, indemnify and hold harmless EMS and the Indemnified Parties from the same. You also release, defend, indemnify and hold harmless EMS and the Indemnified Parties from any liability pertaining to claims brought by third parties that result from your breach, violation, or unauthorized use of the EMS Site and Content. “Indemnified Parties” includes EMS, and any parent company, subsidiaries, and affiliates thereof, and their respective officers, directors, shareholders, partners, employees, agents, representatives, subcontractors, successors, and assigns.

If you have a dispute with one or more users of the EMS Services, you release EMS, its affiliates and service providers, and each of their respective officers, directors, agents, joint venturers, employees and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. You agree to indemnify and hold EMS, our Affiliates, and each of their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys’ fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of this Agreement or your violation of any law, rule or regulation, or the rights of any third party.

13.2. Limitation of Liability; Disclaimers; No Warranty.

YOUR USE OF THE EMS SITE IS AT YOUR RISK. THE EMS SITE IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESSED, IMPLIED OR STATUTORY. THE SERVICES AND MATERIALS PROVIDED IN CONNECTION WITH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER EMS, NOR ANY OF ITS AFFILIATES, SERVICE PROVIDERS OR SUPPLIERS, WARRANTS THE ACCURACY OR COMPLETENESS OF THE SERVICES AND MATERIALS MADE AVAILABLE ON OR THROUGH THE EMS SITE. THE MATERIALS AND SERVICES ON OR THROUGH THE SITE MAY BE OUT OF DATE, AND NEITHER EMS, NOR ANY OF ITS AFFILIATES, SERVICE PROVIDERS OR SUPPLIERS, MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. EMS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE, ANY PART OF THE EMS SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. EMS DOES NOT GUARANTEE THAT ANY ORDER WILL BE PROCESSED, ACCEPTED, FULFILLED, OR RECORDED. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE EMS SERVICES AND EMS SITE.

EMS AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING ANY SITE, OR YOUR DOWNLOADING OF ANY MATERIALS FROM ANY SITE. IN THE EVENT OF ANY PROBLEM WITH THE SITE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT EMS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (I) ANY INACCURACY, DEFECT OR OMISSION OF PRODUCT PRICE DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA; (II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE EMS SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE; (III) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE EMS SERVICES; OR (IV) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT.

WE DO NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS AND SERVICES THAT ARE NOT AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. IN NO EVENT SHALL EMS, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, OR ANY OTHER PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE EMS SERVICES, BE LIABLE FOR (I) ANY AMOUNT GREATER THAN THE VALUE OF THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS OR SERVICES YOU HAVE ORDERED THROUGH THE EMS SITE OR (II) FOR ANY LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE EMS SITE, THE EMS SERVICES, THIS AGREEMENT, OR ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF ANY WEBSITES LINKED TO THE SITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED AT ANY OR ALL SUCH WEBSITES,  EVEN IF EMS HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF EMS’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. This means, by way of example only (and without limiting the scope of the preceding sentence), that if you claim that EMS failed to process a transaction properly, your damages are limited to no more than the lesser of the value of the product order at issue in the transaction or the total value of amount paid by you for the order, and that you may not recover for lost profits, lost business opportunities, diminution in value or other types of special, incidental, indirect, intangible, exemplary, punitive or consequential damages ​or any damages arising out of or relating to your use of the Services not provided through the Site. NO EMPLOYEE OR REPRESENTATIVE OF EMS IS AUTHORIZED TO MODIFY THIS LIMITATION.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

IF YOU ARE A NEW JERSEY RESIDENT, the provisions of this Section 13.2 are intended to apply only to the extent permitted under New Jersey law.

​​The foregoing limitations of damages, liability and disclaimer (no warranty) provisions set forth above in this Section 13.2 are fundamental elements of the basis of the bargain between us and you.

14. Customer Feedback, Queries, Complaints, and Dispute Resolution

14.1. Contact EMS. If you have feedback, or general questions, contact us via our Customer Support via email at internet.sales@electricmotorshop.com.

Please note that by accepting service of a legal document, EMS does not waive any objections we may have and may raise in response to such document.

14.2. Formal Complaint Process. If you have a complaint with EMS, you agree to first contact EMS through our support team to attempt to resolve any such dispute amicably. If we cannot resolve the dispute through EMS Support, you agree to use the Formal Complaint Process set forth below before filing any arbitration claim or small claims action as described further in Appendix 1 below. You must complete the Formal Complaint Process before filing any arbitration or small claims action. If you do not complete it, then you agree that your claim or action must be dismissed from arbitration or small claims court.

14.2.1. Procedural Steps. In the event that the dispute is not resolved through your contact with EMS Support, you agree to use our complaint form to describe your dispute, how you would like us to resolve the complaint, and any other relevant information. The complaint form can be found here, or can be requested from EMS Customer Support. If you prefer to send a written complaint via mail, please include as much information as possible in describing your complaint and how you would like us to resolve the complaint, and including any other relevant information to Electric Motor Shop, 253 Fulton Street, Fresno, CA 93721. We will acknowledge receipt of your complaint form after you submit it. An EMS customer service agent will review and evaluate your complaint based on the information you have provided and information in the possession of EMS. The Formal Complaint Process is completed when EMS responds to your complaint or forty-five (45) business days after the date we receive your complaint, whichever occurs first.

14.3. Arbitration. You agree to be bound by the Arbitration Agreement in Appendix 1 of this Agreement.

15. General Provisions.

15.1. Entire Agreement. This Agreement, the Privacy Policy, the Cookie Policy, and the Appendices incorporated by reference herein comprise the entire understanding and agreement between you and EMS as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of this Agreement), between you and EMS. Section headings in this Agreement are for convenience only and shall not govern the meaning or interpretation of any provision of this Agreement.

15.2. Assignability. EMS reserves the right to assign our rights without restriction, including without limitation to any EMS Affiliates or subsidiaries, or to any successor in interest of any business associated with the EMS Services. In the event that EMS is acquired by or merged with a third party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control. You may not assign any rights and/or licenses granted under this Agreement. Any attempted transfer or assignment by you in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

15.3. Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any local, state, or federal government agency, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of this Agreement shall remain binding, and in full force and effect.

15.4. Survival. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination, EMS Account cancellation, debts owed to EMS, general use of the EMS Site, disputes with EMS, and general provisions, shall survive the termination or expiration of this Agreement.

15.5. Choice of Law and Jurisdiction

This Agreement will be governed and interpreted according to the laws of the State of California, in the United States of America, without giving effect to its conflict of law principles. In the case of a legal dispute concerning this Agreement, the use of the EMS Site or Services, EMS Support interactions, the Content, or other legal matter, you consent to a venue in a court of competent jurisdiction within the geographic boundary of Fresno County in the State of California.

15.6. Force Majeure. EMS shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, fire, severe adverse weather, inability to secure transportation, act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, interruption in telecommunications or Internet or network provider services, failure of equipment and/or software, biological outbreak, epidemic, pandemic, or other catastrophe or any other occurrence which is beyond our reasonable control, whether or not similar to those enumerated above, and shall not affect the validity and enforceability of any remaining provisions.

15.7. Non-Waiver of Rights. This Agreement shall not be construed to waive rights that cannot be waived under applicable laws. In addition, our failure to insist upon or enforce strict performance by you of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in that or any other instance.

15.8. Relationship of the Parties. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between you and EMS, or authorize you to act as an agent of EMS.

 

APPENDIX 1: ARBITRATION AGREEMENT; JURY TRIAL WAIVER; CLASS ACTION WAIVER; JURISDICTION AND VENUE.

PLEASE READ THIS SECTION CAREFULLY. IT CONTAINS AN ARBITRATION AGREEMENT. THIS SECTION MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. THIS SECTION ALSO CONTAINS PROCEDURES FOR FINAL BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION (COLLECTIVELY, “CLASS ACTION”) IN ARBITRATION OR LITIGATION.

THIS SECTION ALSO ADDRESSES THAT YOU AND EMS ARE GIVING UP THE RIGHT TO HAVE A JURY TRIAL TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW AND TO FILE OR PARTICIPATE IN A CLASS ACTION SUBJECT TO THE LIMITED EXCLUSION BELOW. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY, AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

1.1. Applicability of Arbitration Agreement

Subject to the terms of this Arbitration Agreement, you and EMS agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or of the EMS Site, any Communications you receive, any products sold or distributed through the EMS Site, the Services, or the Terms of Use and prior versions of the Terms of Use, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and EMS may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or EMS may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms of Use as well as claims that may arise after the termination of this Terms of Use.

1.2. Waiver of Jury Trial

YOU AND EMS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and EMS are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

1.3. Waiver of Class and Other Non-Individualized Relief

YOU AND EMS AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 1.8, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 1.8 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and EMS agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or EMS from participating in a class-wide settlement of claims.

1.4. Rules and Forum

The Terms of Use evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Formal Complaint Process described in Section 14.2 above does not resolve satisfactorily within forty-five (45) business days after receipt of your complaint form, you and EMS agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available Here.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). If you initiate the arbitration, you must provide EMS a copy of your Request by email at internet.sales@electricmotorshop.com or through EMS’s registered agent for service of process. The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration, and the email addresses associated with the applicable EMS Account(s); (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought, including an accurate, good faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Formal Complaint Process as described above in Section 14.2  (if you are the party making the Request); and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.  If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and EMS otherwise agree, or the Batch Arbitration process discussed in subsection 1.8 is triggered, the arbitration will be conducted in Fresno County. Disputes involving claims, counterclaims, or requests for relief under $25,000, not inclusive of attorneys’ fees and interest, will be conducted solely on the basis of documents you and EMS submit to the arbitrator. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. In any case, you and EMS agree that we will not request more than three depositions per side in each arbitration or Batch Arbitration proceeding. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

You and EMS agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

1.5. Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 1.8 is triggered, the AAA will appoint the arbitrator for each batch.

1.6. Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. This means that, among other things, you and we agree that an arbitral award shall have no preclusive effect in any other proceeding involving other parties. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by the “Limitation of Liability” section of this Agreement.

1.7. Attorneys’ Fees and Costs

The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or EMS need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Formal Complaint Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

1.8. Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and EMS agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against EMS by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by EMS.

You and EMS agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

APPENDIX 2: TERMS AND CONDITIONS OF SALE

Terms and Conditions of Sale

PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, INCLUDING LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU.

These terms and conditions apply to the purchase and sale of products and services through shop.ElectricMotorShop.com (“this platform” or our “e-commerce site”). By placing an order for such products and services, you agree to be bound by and accept these terms and conditions. If you do not agree to these terms and conditions, you should not obtain products or services from this platform. These terms and conditions are subject to change by Electric Motor Shop (referred to as “EMS,” “us,” “our,” or “we”) without prior written notice at any time, in our sole discretion. The latest version of the terms and conditions will be posted on this platform, and you should review these terms and conditions prior to purchasing any product and services that are available through this platform. These terms and conditions are an integral part of the Electric Motor Shop Website Terms of Use (“Terms of Use”) that apply generally to the use of the EMS Site (including the ElectricMotorShop.com website). You should also carefully review our Privacy Policy before placing an order for goods or services through this platform.

1. Order Acceptance and Cancellation

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. We reserve the right at any time after receipt of your order to accept, decline, or limit your order for any reason, whether or not your credit card has been charged. If you are ordering as a business and your company credit card has been charged and your order is canceled you will receive a prompt refund credit to your business account. We reserve 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.

Once an order has been placed, it cannot be cancelled unless the shipment is unavoidably delayed. In this case, we will do our best to cancel the order if requested.

We make every effort to maintain the availability of our e-commerce site. However, should we experience technical difficulties, we are not responsible for orders that are not processed or accepted.

2. United States Orders Only

We cannot accept orders from outside the United States.

3. Payment Terms and Sales Taxes

Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us prior to our acceptance of an order.

We accept credit cards for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.

Purchase orders from businesses may be accepted upon approval of credit and payable on terms as we may approve or require.

All payments must be in United States dollars. Current billing address and phone information must be included with every order. You agree to pay interest on all past-due sums at the highest rate allowed by law. We retain a security interest in the products and all proceeds thereof until the full purchase price therefore (including taxes and additional charges) has been paid.

Charges for shipping and handling will be made in accordance with our then-current shipping policies, as described below.

4. Changes in Products and Pricing

We are constantly updating and revising our offerings of products and services, and we may discontinue products and services at any time without notice. To the extent that we provide information on availability of products or services, you should not rely on such information, and we will not be liable for any lack of availability of products or services that you may order through this platform. All pricing for the products and services available on any of our websites is subject to change. For all of our prices and products, we reserve the right to make adjustments due to changing market conditions, product discontinuation, manufacturer price changes, errors in advertisements, and other extenuating circumstances.

5. Manufacturer’s Warranty

If applicable, manufacturer’s warranties apply from the date of shipment. You understand that we do not operate or control the products or services offered by the manufacturers participating on our e-commerce site, and you agree that under no circumstances will we be liable for any damages arising out of the failure of any manufacturer to fulfill its obligations to you under any warranty, repair, customer support or similar policies covering products and services that you may purchase through our e-commerce site.

While we do not offer any warranties with respect to the products and services available through this platform, we are committed to working with you to ensure that every product under warranty performs to the manufacturer’s specifications.

6. Freight Policy

Title and risk of loss pass to you upon EMS’s tender of product to the shipping carrier. Products shipped to destinations in the contiguous United States will be delivered FCA Point of Origin, Incoterms® 2024.

7. General Shipping & Delivery, Refund, Return, and Exchange Policies

Please refer to Shipping & Delivery Policy, Order Cancellation Policy, Missing Orders Policy, and our Returns, Refunds, and Exchanges Policy, each of which is posted on the EMS Site. These policies set forth your sole and exclusive rights with respect to return of products and services that you may purchase through our e-commerce site.

We offer a variety of shipping options to meet your shipping needs. We use only premium carriers (UPS and FedEx) with various delivery options available for many items. Please check the individual product page for specific delivery options. All deliveries are insured and guaranteed against loss, theft and damage. All shipping prices are quoted in United States dollars. No C.O.D. orders can be accepted, unless otherwise approved by EMS in writing.

All delivery dates are estimates. The posted shipping time frame is listed on the individual product page and may vary from item to item. There may be occasional delays beyond the posted order processing time. The posted shipping time frame is contingent upon credit card approval and may be delayed should we experience difficulties in obtaining authorization.

We offer a 30-day return policy on selected items based on the manufacturer’s return policies. To return products, you must call  (800) 970-5859 or e-mail us at internet.sales@electricmotorshop.com to obtain a Return Merchandise Authorization (RMA) number before shipping your product. No returns of any type will be accepted without an RMA number. For faster service, please have the following information on hand when calling for an RMA number: customer name, invoice or order number, SKU number, and nature of the problem.

To expedite the processing of your refund or credit, we ask that products be returned within 30 days of the date that we issue the RMA. All returned products MUST be 100% complete, contain ALL original boxes and packing materials, have original UPC codes on the manufacturer boxes, and contain all manuals, blank warranty and registration cards, and other accessories and documentation provided by the manufacturer. You are responsible for shipping charges on returned items; we will match your shipping method on your replacement or exchange item(s). You must insure the shipment or accept the risk of loss or damage during shipment. We strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.

If your order arrives in a damaged condition, save the merchandise AND the original box and packing it arrived in, and notify us immediately to arrange for a carrier inspection and a pick up of the damaged merchandise.

DEFECTIVE returns can be returned directly to us within 30 days from the invoice date for, at our discretion, credit, replacement, exchange or repair. Manufacturer restrictions do apply. Any item that is missing the UPC can ONLY be replaced with the same item. After 30 days, all manufacturers’ warranties apply and you should contact the appropriate warrant service provider identified in the product description.

NONDEFECTIVE returns can be accepted directly by us within 30 days from the invoice date for, at our discretion, credit or exchange. All NONDEFECTIVE returns are subject to a restocking fee.

Some manufacturers do not accept returns of certain items for exchange, replacement or credit FOR ANY REASON, and you should check the information provided with the description of the particular product. DEFECTIVE merchandise can be returned for REPAIR only to the manufacturer directly or to any authorized service center in your area. See the description of the particular product for warranty information as provided by the manufacturer.

Questions regarding our return, refund, or shipping and delivery policies should be addressed via e-mail to internet.sales@electricmotorshop.com or by regular mail to Electric Motor Shop, 253 Fulton Street, Fresno, CA 93721, Attention: Merchandising. These policies set forth your sole and exclusive rights with respect to return of products and services that you may purchase through our e-commerce site.

These Shipping & Delivery, Refund, Return, and Exchange terms are accepted by you by placing an order with us.

8. Advertising Disclaimer and Trademarks

The descriptions of products and services that are posted on this platform are the representations of our suppliers. We are not responsible for the accuracy of such descriptions, nor are we responsible for typographical, pricing, product information, advertising or shipping errors.

In the event a product or service is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for products or services listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, we will immediately issue a credit to your credit card account in the amount of the charge.

All trademarks and registered trademarks relating to products and services available through our e-commerce site are the sole property of their respective owners. Photographs courtesy of the respective manufacturers.

9. Disclaimer and Limitation of Liability

ALL PRODUCTS AVAILABLE ON THIS PLATFORM ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANT OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THE PRODUCTS AVAILABLE ON THIS PLATFORM WILL MEET YOUR REQUIREMENTS; THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR THE QUALITY OF ANY PRODUCTS WILL MEET YOUR EXPECTATIONS. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOUR PURCHASE OF PRODUCTS.

ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH OUR E-COMMERCE SITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EMS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, MATERALS, AND SERVICES LISTED OR PURCHASED ON OR THROUGH ANY EMS SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EMS HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. EMS MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. IN STORE AND ONLINE PRICES ADVERTISED BY EMS MAY VARY. PRICES AND AVAILABILITY SUBJECT TO CHANGE WITHOUT NOTICE. EMS will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but EMS makes no representations or warranties regarding the amount of time needed to complete processing which is dependent upon many factors outside of our control.

IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THIS PLATFORM, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR SUPPLIER’S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE APPLICABLE WEBSITE.

WE DO NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS AND SERVICES THAT ARE NOT AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. IN NO EVENT SHALL EMS OR OUR AFFILIATES HAVE ANY OBLIGATIONS OR LIABILITIES TO YOU OR ANY OTHER PERSON FOR LOSS OF PROFITS, FOR LOSS OF BUSINESS OR USE, OR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OR IN CONNECTION WITH THE SALE, DELIVERY, USE, REPAIR OR PERFORMANCE OF THE PRODUCTS AVAILABLE THROUGH THIS PLATFORM. NO EMPLOYEE OR REPRESENTATIVE OF EMS IS AUTHORIZED TO MODIFY THIS LIMITATION.

OUR SOLE AND ENTIRE MAXIMUM LIABILITY (AND THE LIABILITY OF ANY OF THE PROVIDERS OF PRODUCTS AND SERVICES AVAILABLE ON OUR E-COMMERCE SITE), FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH THIS PLATFORM.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOUR PURCHASE OF PRODUCTS AND SERVICES.

10. Privacy and Customer Information

We are committed to protecting your privacy. To make your shopping experience more convenient, we gather information about you. We maintain the privacy of your information using security technologies and adhere to policies that prevent unauthorized use of your personal information. See our Privacy Policy

At any time you may update your customer account information by visiting the Account Settings page, or by following the instructions posted elsewhere on this platform. On the Account Settings page you may update your name, password, billing address, shipping address, e-mail address, telephone number, and credit card information.

11. Service and Support

We offer customer support, services, and training in accordance with the terms set forth on this platform. Additional requests for technical service and support with respect to the products and services available through our e-commerce site may also be made directly to the manufacturer in accordance with their terms and conditions as set forth in the manual and related information accompanying their products. Should you have any questions or concerns, you should contact us by e-mail at internet.sales@electricmotorshop.com or by mail at Electric Motor Shop, 253 Fulton Street, Fresno, CA 93721, Attention: Merchandising. We will do our best to help you; however, we cannot guarantee that every problem will be resolved to your satisfaction.

Except as explicitly noted on our e-commerce site, the services available through this platform are offered by Electric Motor Shop, located at 253 Fulton Street, Fresno, CA 93721. Our telephone number is (800) 970-5859 .

12. Force Majeure

In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of products available through our e-commerce site arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

13. Entire Agreement

These terms and conditions constitute the entire agreement and understanding between us concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this platform is in conflict or inconsistent with these terms and conditions, these terms and conditions shall take precedence.

14. Governing Law and Statute of Limitations

Our e-commerce site (excluding linked websites) is controlled by us from our offices within the State of California, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of California, by accessing this platform both of us agree that the statutes and laws of the State of California, without regard to the conflicts of laws and principles thereof, will apply to all matters relating to the use of our e-commerce site and the purchase of products and services available through this platform. Except as otherwise provided in the Terms of Use, each of us agrees and hereby submits to the exclusive personal jurisdiction and venue of the Superior Court of Fresno County and the United States District Court for the Eastern District of California with respect to such matters.

We make no representation that the products and services available through our e-commerce site are appropriate or available for use in locations outside of the United States, and accessing them from territories where such products and services are illegal is prohibited. Those who choose to access this platform from other locations do so on their own initiative and are responsible for compliance with local laws.

Any cause of action brought by you against us or our Affiliates must be instituted within 3 year(s) after the cause of action arises or be deemed forever waived and barred.