User, Customer and Sanford and Hawley, Incorporated (hereinafter “S&H”) agree as follows:
1. Parties. S&H is Sanford and Hawley, Incorporated, a corporation organized and existing
under the laws of the State of Connecticut with its principal place of business at 1790
Farmington Avenue, Unionville, CT 06085 (“S&H”). Customer is the person(s) or entity that
has an account with S&H (“Customer”). User is/are the person(s) authorized by the Customer
or a duly authorized representative of the Customer to obtain a logon ID and password to the
Customer’s account(s) with S&H, to access the account(s) to obtain any and all information
available online, and to fully use the account(s) including, but not limited to, placing orders,
obtaining price estimates, obtaining statements, balances due and delivery information
2. Primary Supplier. Web Track is a service provided by S&H to its loyal customers. To be
eligible for Web Track, S&H must be Customer’s primary supplier for lumber, millwork and
related building materials of the type that S&H sells and Customer purchases. If S&H
determines at any time, at its sole discretion, that it is not the Customer’s primary supplier,
Web Track access may be terminated without notice.
3. Good Standing. Web Track is a service provided only to customers that are in good credit
standing and not past due. S&H, at any time, at its sole discretion and without notice may
terminate or restrict Web Track to User if Customer’s account becomes past due or over its
credit flag. S&H may also terminate or restrict User’s Web Track access if it believes or
suspects that User is inappropriately using online information or access.
4. User Access Fee and Access. There is no user access fee.
5. Passwords and Security. User and Customer acknowledge that S&H will issue each User a
logon ID and a private, confidential password. User and Customer agree to keep each logon ID
and password confidential and not share any logon ID or password with anyone else. Customer
agrees to request a logon ID and password for each User it desires to have access to its account
with S&H. User and Customer understand that they are collectively, solely responsible for
maintaining logon ID and password security and agree to use the highest reasonable standards
of security for the protection of logon IDs and passwords. User and Customer agree to
immediately notify S&H upon becoming aware of any loss, compromise or theft of, or any
unauthorized use of, logon IDs, passwords or Web Track. Any such notice shall be provided to
S&H’s MIS Administrator or to any S&H officer at 800-433-7941 and then be promptly
confirmed in writing to President, Sanford and Hawley, Inc. 1790 Farmington Avenue, P.O.
Box 545, Unionville, CT 06085-0545. User and Customer acknowledge that the security of
data, information, logon IDs and passwords cannot be guaranteed by S&H and EXPRESSLY
AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS S&H AND ITS
EMPLOYEES, OFFICERS AND DIRECTORS FROM ANY AND ALL CLAIMS,
DAMAGES, LIABILITIES, LOST PROFITS, SUITS, FEES, FINES, PENALTIES,
SETTLEMENTS, JUDGMENTS, COSTS, EXPENSES OR OTHER LOSSES, DIRECT OR
INDIRECT, INCLUDING REASONABLE ATTORNEYS’ FEES FOR ANY SECURITY
BREACHES OF WEB TRACK, FOR ANY IMPROPER OR UNAUTHROIZED USE OF
WEB TRACK FOR ANY ELECTRONIC, HARDWARE OR SOFTWARE FAILURES,
DATA CORRUPTION, LACK OF ACCESS, OR VIRUSES. S&H AND ITS EMPLOYEES,
OFFICERS AND DIRECTORS SHALL NOT BE LIABLE TO USER, CUSTOMER OR ANY
OTHERS FOR ANY LOSS, LIABILITY OR DAMAGES ARISING AS A RESULT OF OR
IN ANY WAY ASSOCIATED WITH WEB TRACK WHETHER DIRECT OR INDIRECT.
6. Confidentiality. User and Customer acknowledge that they will have access to confidential
pricing and other information which are unique to and the property of S&H and that the
disclosure of this to others would greatly harm S&H. User and Customer further acknowledge
and agree that any disclosure or use of the aforesaid prices and other information by the User or
Customer, other than in connection with the ordinary course of their business, will be or may
become highly detrimental to the business of S&H and that serious loss of business and
pecuniary damage to S&H will or may result therefrom. User and Customer explicitly
covenant not to share Web Track access or prices or other information obtained online with
others including, but not limited to, other customers of S&H, the general public, suppliers of
S&H and competitors of S&H. User and Customer further explicitly covenant and agree to
hold all such pricing and other information in the strictest confidence and to safeguard and not
disclose, divulge or reveal said prices or other information to any person(s), entity (ies) or any
other(s) without written authorization from an officer of S&H.
7. Authorization. The person signing this Application and Agreement on behalf of the Customer
certifies that he/she is authorized on behalf of the Customer to enter into this agreement and to
bind the Customer to all of the terms of this agreement. Customer authorizes S&H to provide
Web Track to User and to act on the instructions of anyone logging on to Web Track with a
User logon ID and password. USER AND CUSTOMER AGREE TO INDEMNIFY, DEFEND
AND HOLD HARMLESS S&H AND ITS EMPLOYEES, OFFICERS AND DIRECTORS
FROM ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, LOST PROFITS, SUITS,
FEES, FINES, PENALTIES, SETTLEMENTS, JUDGMENTS, COSTS, EXPENSES OR
OTHER LOSSES, DIRECT OR INDIRECT, INCLUDING REASONABLE ATTORNEYS’
FEES WHICH MAY ARISE OR BE CREATED BY S&H’S ACCEPTANCE OF SAID
8. Credit Agreement. Customer’s credit application and agreement with S&H are hereby
incorporated by reference and made a part of this agreement.
9. Terms and Conditions of Sale. User and Customer hereby agree that S&H’s Standard Terms
and Condition of Sale are hereby incorporated by reference and made a part of this agreement.
User and Customer also agree that any purchase made online is subject to S&H’s Standard
Terms and Conditions of Sale in effect at the time of order placement. Further, that any
estimate made online is subject to S&H’s Standard Terms and Conditions of Sale in effect at
the time of order placement. Customer and User also acknowledge that all price estimates at
subject to change without notice and are subject to taxes and surcharges.
10. Late Charges. User and Customer hereby acknowledge and agree that any online reference to
“Finance Charge” is not a finance charge but is the “Late Charge” referenced in S&H’s Credit
Application and Agreement and in S&H’s Standard Terms and Conditions of Sale.
11. Access. Web Track access is provided on an “as is, as available” basis which will often be 24
hours a day, seven days a week. Web Track access will not be available during daily back ups,
maintenance times, period closeouts and when networks or other factors prevent access. S&H
makes no assurance as to the availability of Web Track access. User and Customer agree that
S&H shall have no liability in the event that Web Track access is not available even if such
periods of inaccessibility are consistent and prolonged. User and Customer are responsible for
and must provide and maintain at their sole cost and expense all hardware, networks, software,
internet connections and the like required to access S&H’s Web Track website.
12. Journey Information. User may have access to Journey (a/k/a dispatch delivery) information
through Web Track and User and Customer hereby acknowledge that any and all such
information are merely estimates or approximations based on S&H’s judgment at some point in
time and are not guaranteed. User and Customer expressly agree not to rely on such
information and AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS S&H AND
ITS EMPLOYEES, OFFICERS AND DIRECTORS FROM ANY AND ALL LIABILITY
FOR USE OF SUCH INFORMATION. S&H SHALL NOT BE LIABLE TO USER,
CUSTOMER OR OTHERS FOR DAMAGES, LIABILITES, LOST PROFITS, SUITS, FEES,
FINES, PENALTIES, SETTLEMENTS, JUDGEMENTS, COSTS, EXPSENSES OR OTHER
LOSSES, DIRECT OR INDIRECT, INCLUDING REASONABLE ATTORNEYS’ FEES,
FOR ANY DELAY IN SHIPMENT OR DELIVERY, WHETHER SUCH DELAY IS MINOR
13. Prices and Material Availability. User and Customer acknowledge that all prices including
those on estimates, quotes, orders, and online shopping carts are subject to change without
notice. Prices are subject to tax, fuel and other surcharges. User and Customer also agree that
any order, online shopping cart, estimate or quote is subject to availability of material. User
and Customer acknowledge that an online order shall not be accepted by S&H until such time
as it has retrieved the order, reviewed it, revised it (including prices) as appropriate at S&H’s
sole discretion, obtained any missing or necessary additional information, and chosen to
process the order. User and Customer further agree that all references to quote mean estimate
as referenced in S&H’s Credit Application and Agreement and in S&H’s Terms and Conditions
14. Third Party Agreement. S&H’s Web Track is provided pursuant to a Proposal for PSI
Application Software and Services with Progressive Solutions, Inc. which agreement includes a
Software License Agreement, a Software Services and Support Agreement and various
Microsoft agreements all of which are hereby incorporated by reference and made a part hereof.
S&H will provide User and Customer with access to a copy of said agreement at its Unionville
office during normal business hours (contact S&H’s controller). In addition, S&H will provide
a copy of said agreement to User or Customer upon written request. User and Customer shall
comply with all of the provisions of said agreement.
15. Limitation of Liability and Indemnification. S&H warrants that any goods sold online will
be, at the time of shipment, free and clear of all liens or encumbrances and that such goods
should generally conform to the description and specifications set forth on S&H’s
order/invoice/online shopping cart. Products purchased by S&H and incorporated, without
modification, in such goods may be subject to a warranty of the manufacturer of such products
and the responsibility of the S&H shall be limited to the assignment of any warranty of such
manufacturer upon Customer’s request without the S&H incurring liability thereunder. THE
FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER
WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR
IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. S&H SHALL NOT BE LIABLE FOR
EXTRA COSTS AND DAMAGES INCLUDING, BUT NOT LIMITED TO, INDIRECT
DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE
DAMAGES, LIQUIDATED DAMAGES, LOST PROFITS, CONSEQUENTIAL
DAMAGES OR ANY OTHER LOSS, COST, EXPENSE, FEE, FINE, PENALTY
AND/OR DAMAGE ARISING FROM THE SALE, HANDLING, STORAGE OR USE
OF THE GOODS OR FROM ANY OTHER CAUSE RELATING THERETO
INCLUDING THE USE OF WEB TRACK.
Customer’s sole and exclusive remedy and S&H’s only obligation shall be the replacement or
repair, at S&H’s sole option, by S&H of any non-conforming goods, F.O.B. S&H’s facility, or
the refund of the price paid for such non-conforming goods at S&H’s sole discretion.
Authority of return must first be obtained from S&H. Customer must afford S&H a reasonable
opportunity to inspect any goods alleged by the Customer or any third party to be nonconforming
or defective in their unaltered condition and to evaluate any claim(s) in accordance
with procedures customary to the industry.
Every claim from any cause shall be deemed waived by the User and Customer unless made in
writing within thirty (30) days of the delivery to Customer of the goods to which such claim
relates or from User’s applicable logon to Web Track should any claim relate to anything other
than the sale of goods. Any such written notice must be mailed to President, Sanford and
Hawley, Inc., P.O. Box 545, Unionville, CT 06085-0545. No legal proceeding shall be brought
for any breach of this contract more than one year after the accrual of the cause of action
In the event that the User or Customer makes any claim against the S&H including, but not
limited to, commencing civil litigation against the S&H and the transaction is a Commercial
Transaction as defined by Connecticut General Statutes Sec. 52-278a (ie other than a Consumer
Contract as defined by Connecticut General Statutes Sec. 42-151) and the User or Customer
does not substantially prevail in its claim, then the Customer shall be liable to S&H for its costs
including, but not limited to, attorneys’ fees whether such claim arises under this paragraph or
16. Waiver of Notice, Hearing and Bond. IN THE EVENT THAT S&H INITIATES
LITIGATION AGAINST USER AND/OR CUSTOMER IN CONNECTICUT AND THE
TRANSACTION IS A COMMERCIAL TRANSACTION AS DEFINED BY
CONNECTICUT GENERAL STATUTES SEC. 52-278a, THEN THE CUSTOMER
HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS HE/SHE/IT MAY HAVE
TO NOTICE AND HEARING UNDER CONNECTICUT GENERAL STATUTES
SECTIONS 52-277a ET. SEQ., AND ACKNOWLEDGES THAT S&H MAY SECURE A
PREJUDGMENT REMEDY AGAINST THE USER AND/OR CUSTOMER WITHOUT
A COURT ORDER. THE USER AND/OR CUSTOMER FURTHER WAIVES ANY
RIGHT HE/SHE/IT MAY HAVE TO REQUEST OR REQUIRE S&H TO POST A
BOND IN CONNECTION WITH THE ISSUANCE OR GRANTING OF ANY
17. Enforcement of Agreement. In the event that S&H is required to enforce any of its rights
under this agreement through legal proceedings or otherwise, User and Customer jointly and
severally, unconditionally guarantee and promise to pay any and all amounts due including, but
not limited to, all costs including reasonably attorney’s fees.
18. Injunctive Relief. User and Customer agree that any breach of this agreement may cause S&H
great and irreparable harm. Consequently, in the event of any such breach, User and Customer
consents to the entry of an appropriate permanent injunction in a Court of appropriate
jurisdiction as hereinafter named. Such injunction shall be in addition to and not in lieu of any
other relief to which S&H may be entitled under law.
19. Applicable Law. All questions arising in connection with this Web Track User Application
and Agreement shall be resolved in accordance with the laws of the State of Connecticut and
User and Customer hereby consent to jurisdiction of the courts of the State of Connecticut.
Unless contrary provisions are contained herein, in Customer’s Credit Application and
Agreement with S&H or in S&H’s Standard Terms and Conditions of Sale, the Uniform
Commercial Code in effect in the State of Connecticut shall apply. In the event that S&H
makes or arranges delivery out of the State of Connecticut, the User and Customer hereby
consent to jurisdiction, at the sole option of S&H, of the courts in either the state where
delivery was made or the State of Connecticut. In the event that the User or Customer resides
or has a place of business out of the State of Connecticut, the User and Customer hereby
consents to jurisdiction, at the sole option of S&H, of the courts in either the state of such
residence or place of business or the Courts of the State of Connecticut.
20. Item Descriptions. Item descriptions used by S&H for products, materials, services and/or
merchandise may include generic terms and/or nominal sizes.
21. Entire Agreement. This agreement contains the final and entire agreement between User,
Customer and S&H regarding use of Web Track and supersedes all previous and
contemporaneous verbal or written negotiations, understandings, or agreements regarding use
of Web Track. As noted above, Customer’s Credit Application and Agreement with S&H and
S&H’s Standard Terms and Conditions of sales are incorporated by reference and made a part
of this agreement.
22. Severability. If any one or more of the provisions of this agreement shall for any
reason be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect the remaining provisions
of this agreement, and this agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been part hereof.
23. Titles. Paragraph titles used in these Terms and Conditions of Sale are for convenience only
and shall be given no import in the construction of the terms of this agreement.
24. Notice. Any notice to S&H must be in writing to President, Sanford and Hawley, Inc., 1790
Farmington Avenue, Unionville, CT 06085-0545. Any notice to User or Customer may be in
writing, by facsimile or by electronic means to the addresses provided above or to any
subsequent or changed address that is provided to and acknowledged by S&H.
25. Delivery. Delivery is only available in Connecticut and Western Massachusetts.