Customer Acknowledgment. The purchaser acknowledges that all machinery and equipment (“Machinery“) advertised, viewed, ordered, purchased, or sold at, by, or through Shub Machinery, a division of the Shub Company (“Shub“), are subject to these Terms and Conditions of Sale (the “Terms“).
All visitors to the Shub website and all purchasers of Machinery hereby acknowledge that Shub engages in a business of brokering Machinery. Therefore, Machinery may be designed, manufactured, serviced, or warranted by the manufacturers of Machinery, and NOT by Shub.
General. These Terms shall apply to all contracts for the sale of Machinery by Shub to any purchaser to the exclusion of all other terms and conditions referred to, offered or relied on by any purchaser, whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by any purchaser. Any variation from these Terms (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed to in writing by an authorized representative of Shub.
Price and Payment; Taxes. The price for any Machinery shall be Shub’s current list price, or such other price as the parties may agree in writing. The price is exclusive of federal, state, or local taxes, or any other applicable costs, including without limitation and those related to, export and import duties, packaging, loading and unloading, shipping, transporting (and any delays related thereto), warehousing, and insurance costs associated with the delivery of the Machinery (“Additional Costs”). Payment of Machinery price and all Additional Costs shall be due within Ten (10) days of the date of the receipt by the purchaser of Shub’s invoice, or as otherwise as agreed to in writing by the parties.Shub shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date the payment is received at a rate of 5% per annum above the prime rate published in the Wall Street Journal on the date of Shub’s invoice.
Product Description. Any description given or applied to Machinery is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of any doubt, the purchaser hereby affirms that it does not in any way rely on any description when entering into a purchase agreement.All specifications and descriptions of Machinery, including photographs, are only estimated indications believed to be accurate, but are not binding in detail. It is the purchaser’s responsibility to inspect and verify all Machinery and to confirm descriptions, measurements, and specifications.
Compliance with Laws. The purchaser has the full responsibility to ensure that Machinery complies with any EPA, OSHA, and any other international, federal, state, or local safety or environmental laws, ordinances, standards, or regulations. Purchaser further acknowledges that Shub shall not be liable for any loss or damage directly or indirectly arising from or related to the purchase, transport, use, re-sale, or disposal of any Machinery, or for consequential, special, exemplary,incidental, or punitive damages, even if Shub has been advised there of.
Disclaimer of Warranties. ALL MACHINERY IS SOLD AS IS WHERE IS, AND WITH ALL FAULTS AND DEFECTS, KNOWN OR UNKNOWN. SHUBEXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ANY MACHINERY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THE PURCHASER HEREBY ACKNOWLEDGES SUCH DISCLAIMER.
Limitation of Liability. THE PURCHASER EXPRESSLY UNDERSTANDS AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHUB AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, “SHUB PARTIES”) WILL NOT BE LIABLE TO ANY PARTY UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE, OR EXEMPLARY DAMAGES THAT MAY BE INCURRED IN CONNECTION WITH THE SALE, PURCHASE, TRANSPORT, RE-SALE, USE, OR DISPOSAL OF MACHINERY, OR THESE TERMS, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT A SHUB PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. THE PURCHASER EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SHUB PARTIES’ TOTAL LIABILITY IN CONNECTION WITH ANY MACHINERY OR THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THE PURCHASER TO SHUB UNDER THESE TERMS.
Confidentiality. In connection with these Terms, each party may gain access to or be exposed to information of the other party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, “know-how,” or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information“). Confidential Information may not be shared with third parties unless such disclosure is (i) on a “need-to-know” basis in connection with thepurchase of Machinery from Shub, and (ii) so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide at least ten (10) days advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two (2) years from the date of disclosure.
Force Majeure. Shub shall not be liable to any purchaser for any failure by Shub to perform any of its obligations during any period in which such performance is delayed by circumstances beyond its reasonable control, including without limitation, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure“). In such event, Shub will endeavor to provide the purchaser with written notice of the Force Majeure. Shub’s time for performance will be excused for the duration of the Force Majeure.
Export Compliance. The purchase acknowledges that the purchased Machinery may be subject to the customs and export control laws and regulations of the United States (“U.S.“) or those of the country in which Machineryis rendered or received. The purchaser agrees to abide by all such applicable laws and regulations. If Shub has agreed in writing to arrange for export and customs clearance of any purchased Machinery, the purchaser agrees to provide Shub with (i) all information requested byShub to obtain export licenses from the U.S. Government or any other applicable national government, and (ii) such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, the purchaseris solely responsible for obtaining any necessary licenses relating to the export of Machinery. Shub’s acceptance of any order for Machinery is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; Shub is not liable for delays or failure to deliver Machinery resulting from the purchaser’s failure to obtain such license or to provide such certification. The purchaser agrees to indemnify, defend and hold Shub harmless from any third-party claims, demands, or causes of action against Shub due to the purchaser’s violation or alleged violation of the applicable export laws, regulations or orders.
Importation Warranties. In any transaction involving importation of any goods or services (whether Machinery (or any part thereof) or otherwise)(collectively, “Imported Goods“) where Shub is involved, the title to Imported Goods shall remain with the purchaser and the purchaser shall be the importer of record at all times. As a condition for (i) use of Shub’s website, (ii) communication with its staff, or (iii) the purchase, transport, use, resale, or disposal of any Imported Goods, all purchasers (potential or actual) hereby represent and warrant that it/he/she is in strict compliance with all applicable (a) international, federal, state, local, or quasi-governmental laws, regulations, ordinances, codes, rules, edicts, voluntary standards, and the like, (b) administrative, judicial, or arbitral decisions, and (c) standards established by private entities. The representations and warranties of all purchasers herein shall apply to all matters arising from or in any way related to (x) Machinery, and (y) any and all matters (including without limitation, payments, costs and expenses, acts or omissions, or any governmental enforcement or third-party actions) connected to the purchase, transport, importation, sale, re-sale, use, or disposal of any Machinery. Upon request from Shub, all purchasers will produce evidence of such compliance to the reasonable satisfaction of Shub.
Regulatory Requirements. Shub is not responsible for determining whether any Machinery satisfies the local regulatory requirements of the country to which such Machinery is to be delivered, and Shub shall not be obligated to provide any product, software, or services where Machinery does not satisfy the local regulatory requirements.
Compliance with the Foreign Corrupt Practices Act (“FCPA”). Shub takes its legal and ethical obligations extremely seriously. As such, as a condition for (i) use of Shub’s website, (ii) communication with its staff, or (iii) the purchase, transport, use, resale, or disposal of any Machinery, all purchasers (potential or actual) hereby represent and warrant that: (a) it/he/she is in strict compliance with FCPA; (b) it/he/she has no “corrupt” or “willful” intentions (as defined in FCPA) in the purchase (proposed or actual) of any Machinery from Shub; (c) it/she/he has in place appropriate and sufficient Anti-Corruption and Ethics Policies (“Policies“) toprevent incidents that may violate FCPA; and that (d) upon request from Shub, it/she/he will produce evidence of such compliance or Policies to the reasonable satisfaction of Shub.
Entire Agreement; Severability. These Terms are the entire agreement between a purchaser and Shub with respect to any purchase of Machinery from Shub, and supersedes all prior oral and written understandings, communications, or agreements between the parties. Any preprinted terms on a purchaser’sdocuments shall be given no force or effect and no terms of a purchase order (or any other document) that conflict with these Terms shall be binding on Shub. No amendment to or modification of these Terms, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of Shub. If any provision of these Terms should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder ofthese Termsshallremain in full force and will not be terminated.
Updates. Shub reserves the right to revise, supplement, or update these Terms at any time, effective upon posting an updated version at www.shubmachinery.com; however, purchaser rights and obligations shall be as provided in the version of the Terms at the time of purchase of any Machinery.
Governing Law and Jurisdiction. The purchaser agrees that the laws of the State of Georgia, U.S.A., excluding its choice of law rules, will apply to these Terms and any disputes arising out of or relating to them. All claims arising out of or relating to these Terms, any Machinery, or related services, if any, will be resolved in accordance with the process set forth in the “Dispute Resolution” section herein. Notwithstanding this, Shub reserves the right to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. In such case, the purchaser and Shub agree to submit to the personal jurisdiction of the state and federal courts where such suit is brought, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PERSONS OR ENTITIES, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Limitation Period. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Dispute Resolution. The purchaser and Shub will resolve any dispute arising out of or related to these Terms, Machinery, or related services (if any) through a binding arbitration in accordance with the rules of the American Arbitration Association,by anarbitrator agreed to by the parties, rather than through litigation. The existence or results of any negotiation, mediation, or arbitration will be treated as confidential. Notwithstanding the foregoing, Shub will have the right to obtain from a state or federal court in Fulton County, Georgia,USA a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying dispute will be resolved in accordance with this paragraph. Under such circumstances, the purchaser agrees that the state or federal courts in Fulton County, Georgia, USA, shall be the sole and exclusive jurisdiction and waives any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
Notices. Notice to Shub related to these Terms, any Machinery, or any related services must be in writing and sent by postage prepaid first-class mail or nationally reputable courier service to the address below or to such other address (including facsimile or e-mail) as specified in writing, and will be effective upon receipt.
Relationship of the Parties. Nothing contained in these Terms shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms shall be deemed to construe either of the parties as the agent of the other.
No Waiver. The lack of action on the part of Shub in response to a purchaser’s refusal/inability to comply with these Termsdo not constitute waiver in any way, and Shub explicitly reserves all rights to take any action at any time in the future pursuant to these Terms.