Terms Of Use

The following Terms of Use are entered into by and between you and Hardware Specialty Co., Inc., a New York corporation (“we”, “our” or “us”). The following terms and conditions, together with our Privacy Policy, and our Terms and Conditions of Sale 2021 (“Terms of Sale”), govern your access to and use of www.hardwarespecialty.com, including any content functionality and services and products offered on or through our website  belonging to, provided by, created by or operated by us.

  By using our website, you accept and agree to be bound and abide by these Terms of Use. 

Our website is available to users who are 18 years of age or older.  By using our website, you represent and warrant that you are of legal age to form a binding contract with us and meet all of the foregoing eligibility requirements.  If you do not meet all of these requirements, you must not access or use our website.

All information we collect on our website is subject to our Privacy Policy.  By using our website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Please note: These Terms of Use require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute.

  1. Changes to Terms of Use.  These Terms of Use are subject to revision. In the event of a revision, we may notify you by posting a notice of the changes to our website.  All changes are effective immediately upon posting on our website and shall apply to all access to and use of our website thereafter.  Continued access to our website and/or use of our services following posting of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions including such changes.

  1. Accounts.

             2.1.        Account Creation. In order to use certain features of our website, you may be required to register for an account and provide certain information about yourself and/or your company as prompted by the account registration form.  We recommend that you choose a strong password and log out from your account at the end of every session. You must treat your account log-in information as confidential, not disclosing it to any third party. If you think there may have been any breach of security, then it is your responsibility to notify us immediately and if log-in is possible, to change your password.  You represent and warrant that: (a) all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. You may delete your account at any time, for any reason, by following the instructions on our website.  We may suspend or terminate your account in accordance with these Terms of Use or as required by applicable law.

             2.2.        Account Privacy and Responsibilities. If you choose or are provided with a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.  You are responsible for maintaining the confidentiality of ANY Account login information and are fully responsible for all activities that occur under your Account.  You agree to immediately notify US of any unauthorized use (or suspected unauthorized use) of your Account or any other DIRECT OR INDIRECT breach of security.   WE cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be liable for losses incurred by us or another party due to someone else using your account or password. You may not use anyone else’s account at any time without the permission of the account holder.

             3.           Access to our Website.

             3.1         Term and TerminationWe reserve the right, at any time, to modify, suspend or discontinue our services (in whole or in part) with or without notice to you.  You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuation of our services or any part thereof.  We also reserve the right to withdraw or amend part of or the entirety of our website and our services in our sole discretion without notice. We will not be liable if, for any reason, all or any part of our website is unavailable at any time for any period. From time to time, we may restrict access to some parts of our website and our service to users, including registered users.  We have the right to disable any user name, password or other identifier (whether chosen by you or provided by us) at any time in our sole discretion for any or no reason, including if in our opinion you have violated any provision of these Terms of Use.

                          Upon termination of your rights under these Terms of Use, your account and right to access and use our website and our services will terminate immediately.  Similarly, termination of your account and/or right to access and use our website and our services will automatically terminate your rights, but not your obligations, under these Terms of Use.  All obligations and liabilities incurred by you prior to the date of termination of your account shall survive the termination of these Terms of Use for all purposes.  We will not have any liability whatsoever to you for any termination of your rights under these Terms of Use.

             3.2         No Support or Maintenance. You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with our website and our services and products unless we explicitly agree to provide such support and maintenance services in a separate definitive written agreement between you and us, which has been signed by you and us.

             3.3         Ownership. You acknowledge that all the intellectual property rights (including copyrights, patents, trademarks, and trade secrets used on or in connection with our website and our services and products) are owned by us or our suppliers or customers, as the case may be.  Neither these Terms of Use nor your access to our services or our website shall be deemed to transfer to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth below.  We and our suppliers reserve all rights not granted in these Terms of Use.  There are no implied licenses granted under these Terms of Use.

             3.4         Links to Our Website.  You may not link to our website.

             3.5         Geographic Restrictions.  The owner of our website is based in the State of New York in the United States.  Access to our website may not be legal by certain persons or in certain countries.

             3.6         Reliance on Posted Information.  The information presented on or through our website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to our website, or by anyone who may be informed of any of its contents. 

3.7         Online Purchases.  All purchases through our website or other transactions for the sale of products or services or information formed through our website or resulting from visits made by you are governed by our Terms of Sale unless otherwise provided in a separate written agreement between you and us.  Additional terms and conditions may also apply to specific portions, services, or features of our website. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

             3.8         Prices and Payment Terms.

(a)         All prices, discounts, and promotions posted on our website are subject to change without notice. The price charged for a product or service will be the price advertised on our website at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

(b)         Terms of payment are within our sole discretion.   For existing customers in good standing, as determined in our sole discretion, we may extend credit in which case invoices shall be due and payable as stated on the invoice.  We accept credit cards or may invoice you for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on our website at the time of your order.

             3.9         Taxes. You acknowledge and understand that our prices, fees and other charges do not include any taxes that may be applicable to your purchase. You agree to bear and be responsible for all such Taxes. If you are a tax-exempt entity or claim exemption from any Taxes under these Terms of Use, you shall provide a certificate of exemption upon execution of these Terms of Use and, after receipt of valid evidence of exemption, we shall not charge you any Taxes from which we  are exempt. You hereby agree to indemnify, defend and hold us harmless for any Taxes and related costs paid or payable by us attributable to Taxes that would have been your responsibility under this section if invoiced to you. You shall promptly pay or reimburse us for all costs and damages related to any liability incurred by us as a result of your noncompliance or delay with its responsibilities herein.

             4.   Intellectual Property Rights.

             4.1         License. Subject to these Terms of Use, we hereby grant you a non-transferable, non-exclusive, revocable, limited license to use and access our website solely for your own use. All copyright and other proprietary notices on our website (or on any content displayed on our website) must be retained on all copies thereof.  You may not frame or utilize framing techniques to enclose any of our trademark, logo, or other proprietary information without our express written consent. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. Any unauthorized use terminates the permission or license granted by us.

             4.2         Certain RestrictionsThe rights granted to you in these Terms of Use are subject to the following restrictions: (a) you may not license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit our website or our services, whether in whole or in part, or any content (third party or otherwise) displayed on our website; (b) you may not modify, make derivative works of, disassemble, reverse compile, reverse assemble or reverse engineer any part of our website, or use any data mining, robots or similar data gathering or extraction methods; (c) you may not access our website or our products  or services in order to build a similar or competitive website, product or service; and (d) no part of our website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update or other addition to functionality of our website shall be subject to these Terms of Use. 

                          4.3         Availability. We work hard to ensure that our website is available, but we cannot guarantee that the website will not have downtime for any reason. We reserve the right to close the website for certain periods of time for general maintenance, but we will attempt to keep this to a minimum. We will not be liable if for any reason all or any part of the website is unavailable at any time, for any length of time.

             4.4         Trademarks. You may not use our name, our logo, and all related names, logos, product and service names, designs and slogans without our prior written consent. All other names, logos, product and service names, designs and slogans on our website are the trademarks of their respective owners.

             5.           Use of our Website.

             5.1         User Information. The term User Informationmeans any and all information and content that a user submits to (or uses with) our website and/or our services, including without limitation content in a user’s profile. You are solely responsible for your User Information.  You assume all risks associated with the use of your User Information, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Information that personally identifies you or any third party.

             5.2         Covenants on Use.  You agree not to: (i) upload, transmit or distribute to or through our website any computer viruses, worms or software intended to damage or alter a computer system or data; (ii) interfere with, disrupt or create an undue burden on servers or networks connected to our website, or violate the regulations, policies or procedures of such networks; or (iii) attempt to gain unauthorized access to our website (or to other computer systems or networks connected to or used together with our website), whether through password mining or any other means.

             6.          Copyright and Trademark Information. Copyright © 2021 HARDWARE SPECIALTY CO., INC. All rights reserved.  All content displayed on our website and/or our products and services, such as trademarks, service marks, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and software are our property or the property of third parties. You are not permitted to use such trademarks, service marks, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and software without our prior written consent or the consent of such third-party owner.  The compilation of all content on this site is our exclusive property, with copyright authorship for this collection by us and protected by international copyright laws.

             7.           Confidentiality and Security.

             7.1.        Confidentiality.  We will treat your User Information as confidential information and only use and disclose it in accordance with these Terms of Use (including our Privacy Policy).  We will not, however, regard your User Information as confidential information if it: (a) is or becomes public (other than through breach of these Terms of Use by us); (b) was lawfully known to us before receiving it from you; (c) is received by us from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by us (or our designee) without reference to your User Information. We may disclose your User Information when required by law or legal process, but only after we, if permitted by law, use commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.

                          7.2.        Security.  We take precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline. Wherever we collect sensitive information (e.g., credit card data), that information is transmitted to us in a secure way.  Only employees who need the information to perform a specific job (e.g., billing or customer service) are granted access to personally identifiable information. The computers/servers in which we store personally identifiable information are kept in a secure environment.

             8.           Compliance with Law

             8.1.        Local LawsWe control and operate our website from our headquarters in the United States. If you use our website from outside the United States, you are entirely responsible for compliance with applicable local laws, including without limitation the export and import laws of other countries in relation to the materials and third-party content.  

             8.2.        Export.  Our website and/or our products and services may be subject to United States export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export or transfer, directly or indirectly, any United States technical data acquired from us, or any products utilizing such data, in violation of the United States export laws or regulations.

             9.          Third Party Links.  Our website and our services may contain links to third-party websites and services and/or display advertisements for third parties (collectively, “Third Party Links”).  Such Third Party Links are not under our control, and we are not responsible for any Third Party Links.  To the extent that we may provide access to Third Party Links, we provide access to such Third Party Links only as a convenience to you, and do not review, approve, monitor, endorse, warrant or make any representations with respect to any such Third Party Links.  You use all Third Party Links at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any Third Party Links, the applicable third party’s terms and policies apply to your use thereof, including such third party’s privacy, terms of use, and data gathering practices. You are solely responsible for conducting the research and investigation that you deem necessary and appropriate prior to using such Third Party Links and prior to proceeding with any transaction in connection with such Third Party Links.

             10.         Disclaimers and Limitations of Liability.

             10.1.      Disclaimers.   YOUR USE OF OUR Website, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH OUR Website IS AT YOUR OWN RISK. OUR WEBSITE AND OUR SERVICES are PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS, AGENTS, PARTNERS, SUBSIDIARIES, AFFILIATES) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.  WE (AND OUR SUPPLIERS, AGENTS, PARTNERS, SUBSIDIARIES, AFFILIATES) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL OR SAFE.  IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM DELIVERY.

                                        You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OUR Website OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR Website OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY Website LINKED TO IT.

                          SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 

             10.2.      Limitations of Liability.   YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE (OR OUR SUPPLIERS, AGENTS, PARTNERS, SUBSIDIARIES, AFFILIATES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE TERMS OF USE OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO these Terms of Use (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNT ACTUALLY PAID TO US BY YOU RESPECTING THE PRODUCTS AND/OR SERVICES PROVIDED UNDER THE ORDER GIVING RISE TO SUCH CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.  YOU AGREE THAT OUR SUPPLIERS, AGENTS, PARTNERS, SUBSIDIARIES, AFFILIATES WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO these Terms of Use.  YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS REQUIRED BY APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY COMPANY, PARTNER OR OTHER USER OF THE SERVICE. 

                          We do not undertake to review all material before it is posted on our website and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

                          Neither party will be liable for delays caused by any event or circumstances beyond its reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service failures or delays.

                                       SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  

             10.3.      Indemnification.   You agree to indemnify and hold us (and our officers, affiliates, licensors, service providers, employees and agents) harmless, including costs and legal fees, from any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) made by any third party due to or arising out of (a) your use of our website and/or our products and services, or your use of any information obtained from our website, (b) your violation of these Terms of Use, (c) your violation of applicable laws or regulations, (d) your User Information, or (e) any third-party claims of injury or damage to a person or property as a result of the use of the products sold on our website.  We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.  You agree not to settle any matter without our prior written consent.  We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

             10.4.      Release.  You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, our website and our services (including any interactions with, or act or omission of, other users of our website and our services or any Third Party Links).  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

             11.         Dispute ResolutionPLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

             These Terms of Use and any and all claims, disputes or other legal proceedings by or between you or us, including without limitation any such claims or disputes that are in any way related to or arising under these Terms of Use or your access to or use of our website and/or our services, shall be governed by the laws of the State of New York without giving effect to any conflict-of-laws principles that may otherwise provide for the application of the law of another jurisdiction. For any claim, dispute or other legal proceeding not subject to arbitration, the claim or dispute shall be brought and litigated exclusively in the state courts located within New York County, New York or the federal courts in the Southern District of New York, as appropriate, and you agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such non-arbitrable claims or disputes.

You and we each agree that any and all disputes between us arising under or related in any way to these Terms of Use and your use of our website and/or our services must be resolved through binding arbitration as described in this section.  The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), if applicable, as modified by this section.  The AAA's rules and a form for initiating the proceeding are available at www.adr.org.  If the AAA is not available to arbitrate, the parties shall agree to select another established alternative dispute resolution provider that offers arbitration.  Any settlement offer made by us or you shall not be disclosed to the arbitrator.  Unless otherwise required by the applicable arbitration rules, the arbitration shall be held in New York, New York.  The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  All arbitration proceedings shall be held in the English language.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the arbitrator.

                          All aspects of the arbitration proceeding (including without limitation the award of the arbitrator and compliance therewith) shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms of Use, to enforce an arbitration award or to seek injunctive or equitable relief.

             Notwithstanding any provision in these Terms of Use to the contrary, you and we agree that if we make any changes to this “Dispute Resolution” section (other than a change to any referenced notice address or site link) in the future, that change will not apply to any claim that was filed in a legal proceeding prior to the effective date of the change.  The change will apply to all other disputes or claims governed by this section that have arisen or may arise between you and us.

             THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this arbitration agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. 

             12.         General.

             12.1       WaiverNo waiver by us of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of us to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

             12.2       SeverabilityIf any provision of these Terms of Use is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties' intention or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and enforceable.

             12.3       Electronic CommunicationsThe communications between you and us use electronic means, whether you use our website and our services or send us emails, or whether we post notices on our website or communicate with you by email.  For contractual purposes, you (a) consent to receive communications from us in electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hard-copy writing.  The foregoing does not affect your non-waivable rights.

             12.4       California ComplaintsWe are located at the address set forth in Section 12.4 below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd. Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

             12.5       RepresentationsYou represent and warrant that no person has made any promise, representation or warranty, whether express or implied, not contained herein to induce you to accept these Terms of Use.

             12.6       Entire Agreement.  Except as specifically stated in another agreement we have with you, these Terms of Use constitute the entire agreement between you and us regarding the use of our website and our services and these Terms of Use supersede all prior proposals, negotiations, agreements, and understandings concerning the subject matter of these Terms of Use.

             12.7       AssignmentThe Terms of Use, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms of Use and be void.  The terms and conditions set forth in these Terms of Use shall be binding upon assignees.

             12.8       Headings, InterpretationThe section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. 

             12.9       Governing LawThese Terms of Use shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to conflict of laws provisions. These Terms of Use will not limit any consumer protection rights that you may be entitled to under the mandatory laws of your state of residence.

             13.         Contact Information.

HARDWARE SPECIALTY CO., INC.

48-75 36th Street

Long Island City, New York, 11101

EMAIL:  info@hardwarespecialty.com

             14.         Country-Specific Terms.  See Exhibit A for General Data Protection Regulation (“GDPR”)-specific rider.  

Last Updated: [September 24, 2021] 

 

Exhibit A

GDPR-Specific Terms

EU1.      Right of Withdrawal.  In certain European countries, you have a legal right to cancel an order within a certain period of time. For details, see the country-specific terms for your country.

EU2.      GDPR Terms for Customers in Europe.

EU 2.1                Effective Date and Definitions.  These additional terms will apply to you from when you are a customer of ours and are operating as a “data controller” (as that term is defined in the GDPR) in your use of our services.  The terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the GDPR.

EU 2.2                Processing Instruction.  By requesting our services and agreeing to these Terms of Use and our privacy policies, you are providing us with instructions to process any personal data collected by you through our website, on your behalf.

EU 2.3                Customer Obligations.  You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to us so that we may lawfully process and transfer the personal data in accordance with these Terms of Use. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by us in the provision of our services.

EU 2.4                Our Obligations. Where we are processing personal data on your behalf, we will:

(a) only do so on your documented instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that these terms and our privacy policies constitute such documented instructions;

(b) ensure that all of our personnel involved in the processing of personal data have committed themselves to confidentiality;

(c) where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by us and is not otherwise available to you through your account and user areas or on our websites, provided that you provide us with at least fourteen (14) days’ written notice of such an information request;

(d) promptly notify you of all requests received directly from a data subject in respect of that data subject's personal data submitted through our website;

(e) upon deletion by you, not retain personal data from within your account other than historical information and/or in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes; and

(f) to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving our services.

EU 2.5                Our Sub-Processors.  We use trusted partners in facilitating certain elements of our website and/or our services. By agreeing to these Terms of Use, you provide a general authorization to us to engage onward sub-processors, subject to compliance with the requirements set out here subject to applicable law.

EU 2.6                Security Measures. We have, taking into account the state of the art, cost of implementation and the nature, scope, context and purposes of our services and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data.

EU 2.7                Security Incident.  If we become aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure (or destruction of) personal data (“Security Incident”), we will take reasonable steps to notify you without undue delay. We will also reasonably cooperate with you with respect to any investigations relating to a Security Incident.

EU 2.8                International Transfer.  To the extent applicable, we rely (in order of precedence) upon (i) our “Privacy Shield” certification, if any; (ii) standard contractual clauses, for data transfer to the United States to us.  We also rely on standard contractual clauses for data transfers to other third parties based in countries outside the European Economic Area, the United States or countries that do not have adequate levels of data protection as determined by the European Commission.

EU 2.9               Liability for Data Processing.  The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Section EU2 shall be as set out in these Terms of Use, unless otherwise agreed in writing.