Terms And Conditions



All purchase orders between you, the buyer, (the "Company") and Hardware Specialty Co., Inc, (the "Distributor") for goods (the "Product(s)") shall be subject to the terms and conditions of sale contained herein (the "Agreement"). By placing a purchase order with the Distributor or accepting delivery of goods from the Distributor, the Company acknowledges that it has reviewed this Agreement and accepts these terms and conditions. The date the purchase order is placed shall be deemed the "Effective Date."

1. Purchase Orders. No purchase order placed with the Distributor by the Company (“Purchase Order”) shall become binding upon the Distributor until the Distributor acknowledges or ships against a Purchase Order. The terms and conditions of this Agreement, which also shall govern online purchases, shall supersede any conflicting or additional terms and conditions contained within the Purchase Order, and such additional terms are hereby expressly rejected. If there is a conflict between the Terms of Use and other agreements, including this Agreement, then those other agreements and this Agreement shall prevail. 

2. Pricing. Prices shall be as quoted by Distributor and are subject to change. All payments for Products purchased hereunder shall be made in U.S. dollars.  The Company shall remit payment to the Distributor within thirty (30) days of its receipt of the invoice from the Distributor. The Company shall receive a one (1%) percent cash discount for payments received by the Distributor within ten (10) days of the Company’s receipt of the invoice. 

3. Delivery and Title. Title, risk of loss and the shipment of Products shall be EXW Distributor’s facility (Incoterms 2020). All delivery dates are good faith estimates only. 

4. Quality. All Products must be inspected by the Company within thirty (30) business days of delivery. Any Products not rejected at that time are deemed accepted by the Company. 

5. Non-Conforming Products. In the event that Product does not conform to the warranty set forth in Section 7 (“Non-Conforming Products”), the Distributor, in its sole option, shall (i) repair or replace the Non-Conforming Product or (ii) issue a credit equal to the actual purchase price of the Non-Conforming Product paid by the Company. This section, along with Section 8 below, sets forth the Distributor’s sole liability and the Company’s exclusive remedy for any action that is brought against the Distributor. 

6. Returns/Changes. All Purchase Orders placed with the Distributor by the Company and all Products are non-cancellable and non-returnable, except in the case of Non-Conforming Products. In order for Non-Conforming Products to be returned and accepted by the Distributor, such Products must have their lot traceability intact. Open Purchase Orders may not be modified, except with the Distributor’s written consent. 

7. Warranty. The Distributor warrants for a period of thirty (30) days from delivery to the Company that all Products covered by this Agreement shall conform to the specifications contained in the Purchase Order. Except as set forth in the prior sentence, the Distributor makes no other warranty, express or implied and all other warranties are expressly disclaimed by Distributor. 

8. Indemnification. The Distributor’s indemnification of the Company shall be limited solely to any and all liabilities, expenses, losses, damages, claims,  fines, penalties and costs (including all reasonable attorneys’ fees whether incurred by the Company or awarded against the Company) as a result of any bodily injury to or death of any person or damage to any property caused by the gross negligence or willful misconduct of the Distributor or its personnel in performance of this Agreement. All other indemnities are specifically disclaimed by the Distributor. The Company shall indemnify and hold harmless the Distributor and its customers, officers, directors, agents and employees from and against any and all claims, demands, losses, costs, expenses (including reasonable attorneys’ fees) and liabilities of any kind, which may be asserted or suffered on the grounds that the item, which is of the Company’s design or specification: (i) infringes on any copyright or patent; misappropriates a trade secret; or otherwise violates an intellectual property right of a third party, or (ii) causes any bodily injury to or death of any person or damage to any property. 

9. Limitation of Liability.    Notwithstanding anything to the contrary contained herein, in no event shall the Distributor be liable to the Company or any third party under any statute or under any legal or equitable theory, for consequential, special, indirect, incidental, punitive or exemplary losses, damages or expenses, or for lost profits, lost business, or for lost opportunities, whether arising out of a breach of contract, tort (including negligence) or otherwise, and regardless of whether the Company has been advised of the possibility of such damages. Further, the Distributor shall not have any liability to the Company or any third party for any failure or delay due to matters beyond its reasonable control. In no event shall the Distributor’s total liability, including but not limited to direct damages, to the Company exceed the amount paid to the Distributor by the Company for the Product that gave rise to an indemnifiable claim hereunder. The foregoing limitations shall apply even if the Company’s remedies under this Agreement fail their essential purpose. 

10.    Entire Agreement. This Agreement constitutes the sole and entire agreement and understanding between the Parties and supersedes all agreements, understandings, previous inducement or representations, express or implied, pertaining to the subject matter hereof. Unless the Distributor expressly agrees in a writing that makes specific reference to this Agreement, the terms and conditions on the Company’s Purchase Order or similar documents shall not apply to any Products sold by Distributor to the Company and any such terms and conditions on any such document are objected to without the need of further notice or objection. 

11.    Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of laws rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. To the fullest extent permitted by applicable law, each Party hereto (i) agrees that any claim, action or proceeding by such party seeking any relief whatsoever arising out of, relating to or in connection with, this Agreement or the transactions contemplated hereby shall be brought only in the United States District Court for the Southern District of New York or any New York State court, in each case, located in the Borough of Manhattan and not in any other State or Federal court in the U.S. or any court in any other country. 

12.    Force Majeure. The Distributor shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including, but not limited to, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, embargo, natural disaster, acts of God, acts of terrorism, flood, fire, sabotage, accident, delay in transportation, loss and destruction of property, intervention by governmental entities, change in laws, regulations or orders, other events or any other circumstances or causes beyond Distributor's reasonable control. 

13.    Distributor. The Company acknowledges that as a distributor, the Distributor does not own intellectual property rights in the items it sells to the Company and no intellectual property rights in the design composition or manufacture of the Products purchased hereunder is therefore transferable by the Distributor to the Company.  The Company additionally acknowledges that as a distributor, the Distributor can only provide such notices of product, process and material changes, or change of manufacturing location or continued product production and notices of discontinuation and support, as it receives from the manufacturer. Lastly, unless otherwise restricted by a separate non-disclosure agreement signed by the Distributor, the Company agrees that the Distributor may provide the Company’s confidential information to its suppliers and subcontractors as needed to fill the Company’s orders without need for further notice or consent. It shall be the responsibility of the Company to mark or otherwise identify any information, drawing, specifications or technical data provided to Distributor that may be confidential or export-controlled. 

14.    Non-solicitation. The Company shall not, without the Distributor’s prior written consent, during the term of this Agreement and for a period of two (2) years following expiration or termination of this Agreement, solicit, hire or aid in the solicitation or hiring of anyone employed by the Distributor to leave his or her employment to work for the Company or an affiliate. 

15.    Security Interest. Company grants Distributor a security interest in the Products thereof, to the fullest extent possible under applicable law. The security interest shall remain in effect until Products have been paid for in full. Buyer agrees to sign such separate security agreements, financing statements or other documents as Seller deems necessary to protect its security interest or ownership from the claims of third parties. 

16.    Export. Distributor’s website and/or Products and services may be subject to U.S. export control laws and export or import regulations in other countries. Company agrees not to export, re-export or transfer, directly or indirectly, any U.S. technical data acquired from Distributor, or any Products utilizing such data, in violation of U.S. export laws or regulations. 

17.    Miscellaneous. No provision of this Agreement is intended nor shall it be construed to confer upon any person or entity, other than the parties, any rights, remedies or benefits. The section headings in this Agreement are inserted only for convenience and in no way define, limit, construe or describe the scope of such section or in any way affect such section. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective representatives, successors and permitted assigns. This Agreement shall not be assignable by either party. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Any provision of this Agreement may be amended only if such amendment is accepted in writing by the Distributor. 

Last Updated: September 24, 2021