Legal Benjamin Moore & Co., Limited, Website Terms and Conditions
Terms and Conditions were last modified and are effective as of February 4, 2019.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES, AND FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US REGARDING YOUR USE OF OUR WEBSITES. IF, FOR ANY REASON, YOU ARE UNABLE OR UNWILLING TO AGREE TO ALL OF OUR TERMS AND CONDITIONS, PLEASE IMMEDIATELY STOP USING OR ATTEMPTING TO USE OUR WEBSITES, BECAUSE IF YOU CONTINUE YOU WILL BE AGREEING TO ALL THE TERMS AND CONDITIONS THAT ARE DESCRIBED OR REFERRED TO BELOW.
PLEASE BE ADVISED THAT THESE TERMS AND CONDITIONS CONTAIN PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDES A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE READ THESE PROVISIONS BEFORE USING THE WEBSITES.
Benjamin Moore & Co., Limited ("Benjamin Moore", "we", "our" or "us") provides various Internet websites (collectively, the "Websites"), and these terms and conditions ("Terms of Conditions") represent a legally binding agreement between you and us regarding your use of our Websites. These Terms and Conditions include any other terms and conditions that we notify you of when you use or attempt to use our Websites ("Additional Terms"), all of which are incorporated by reference and form a part of our Terms and Conditions for all purposes. Our Websites include all web pages within our Websites and also include backup, mirror, replacement or substitute sites or pages we make available as part of the services we provide. We will refer to each and every feature, function, service, activity, promotion and content on our Websites, individually and/or collectively as "Content." When we use the term "Websites" it also includes Content unless we specifically say otherwise.
We will refer to users of our Websites, our features, functions and services individually and/or collectively as "users", "you" or "your" to make reading these materials easier. When you see the word "use" or "using" we mean any time you – directly or indirectly, and with or without the help of any device – attempt to or actually do access, interact, display, view, browse, print or copy, transmit, receive or exchange data, messages, content or otherwise communicate with us or anyone else, including another user, advertiser or any person, firm or business you may encounter. We will also consider you to be using our Websites if you utilize, benefit, take advantage of or interact with any feature, function, service, activity, promotion or content in, on or available through any of our Websites, for any purpose, or if you try to do any of these things.
By using our Websites you are acknowledging you have read and understand the legal agreement you have with us, and unless you immediately stop using or trying to use all of our Websites, you will be signifying your agreement to be legally bound by and comply with all of the terms and conditions that apply to you under these Terms and Conditions.
Terms and Conditions and Website Changes
We reserve the right to add to, delete or modify these Terms and Conditions, as well as all or part of our Websites, at any time and from time to time by updating or revising this posting. Such revisions shall take effect as of the date of posting. IF YOU USE ANY OF OUR WEBSITES AFTER THE CHANGES BECOME EFFECTIVE, IT MEANS YOU ARE AGREEING TO BE BOUND BY THE CHANGES. WE ENCOURAGE YOU TO CHECK BACK HERE FREQUENTLY SO YOU REMAIN AWARE OF THE CURRENT TERMS AND CONDITIONS THAT APPLY TO YOU.
Ownership and Use of Benjamin Moore Websites and Content
We maintain our Websites for your information, education, entertainment, and sales. Our Websites and, except as described below, all Content, is either the property of Benjamin Moore or our affiliates, licensors, suppliers, operational service providers, advertisers, agencies or promotional partners (collectively, "Benjamin Moore Entities"), and are legally protected, without limitation, under Canadian and U.S. federal, provincial and state laws and regulations, as well as applicable foreign laws, regulations and treaties. To avoid any doubt, when the word "Content" is used it includes, but is not limited to, such things as software, code, design, text, images, photographs, illustrations, animations, audio, video and audio-visual material, art, graphic material, proprietary information, data, databases, service marks, trademarks, trade names, distinctive identification such as logos, the selection, sequence, 'look and feel' and arrangement of items and all copyrightable or otherwise legally protectable elements of any and all of our Websites.
Except as set forth in the “Unsolicited Suggestions: They Become Ours and We Have No Obligation to You” section below, you keep ownership to any and all Content that is yours and if you submit or provide Content, these Terms and Conditions do not deprive you or any holder of your or their rights. However, when you do submit or provide Content to us or any of our Websites, you are giving us and the Benjamin Moore Entities an unconditional, irrevocable, transferable, royalty free worldwide license to use, display, reproduce, perform, adapt, translate, modify, create derivative works, publish, distribute, disseminate and/or broadcast that Content ("license") and you are representing and warranting to us you have the right to give us and the Benjamin Moore Entities such license. If you do not have the right to license Content as set forth in these Terms and Conditions (or if you are not sure), do not submit or provide Content.
You may only use our Content and Content of other users for your own personal use and you have no right to transfer, assign or use the Content for any other purpose or allow or enable anyone else to do so. Personal use means nothing commercial or even charitable, whether or not money or other compensation or consideration is involved and whether or not it is for your benefit or for someone else. This also means you are not allowed to use, display, reproduce, perform, adapt, translate, modify, create derivative works, publish, distribute, disseminate and/or broadcast Content that is not yours without our express prior written consent. You may not alter, delete or conceal copyright or other notices, even if we let you download, display, print or share the Content with others. Unauthorized or prohibited use of Content may subject you to civil liability, criminal prosecution, or both under federal, state and local laws. Except as expressly provided above, nothing contained herein shall be construed as conferring any license or right under any copyright or other intellectual property right.
Unsolicited Suggestions: They Become Ours and We Have No Obligation to You
Benjamin Moore likes to hear from consumers and professionals about what they think about our products and we encourage you to contact us. However, we do not accept, evaluate or consider unsolicited ideas, materials, concepts, information, content or suggestions of any kind ("Unsolicited Suggestions"), including, but not limited to, those relating to products, processes, product names, advertising or marketing, nor do we have or accept any obligation, liability or responsibility if you send us any Unsolicited Suggestions of any kind. We have found that this policy and approach avoids potential misunderstanding and dispute, since your Unsolicited Suggestion may seem similar to products, services or activities we undertake or commission, even those previously considered or currently under consideration and whether we implement them or not.
As a result, we have adopted a policy whereby we do not agree to accept, on any terms or under any conditions, Unsolicited Suggestions. Please do not submit, post or send us any Unsolicited Suggestions, because if you do or you attempt to do so (whether you ignore these warnings, or do not read or attempt to understand them), you are agreeing that we can treat the Unsolicited Suggestion as our own, without any obligation of confidentiality, without any restrictions or conditions, and without obligation or liability to you or anyone else. We will be free to use or choose not to use all or any part of any Unsolicited Suggestions you submit for any purpose, any time and anywhere in the world, and we will also have the right to modify, re-purpose, do anything, or refrain from doing anything with respect to such Unsolicited Suggestions, free and clear of any requirements or restrictions of any kind. You should also understand that we will have no obligation to compensate, reward, account to you, notify you or even acknowledge any matters that relate to an Unsolicited Suggestion you submit.
You should consult with your own independent legal advisors concerning your rights or if you are not clear whether anything you wish to submit to us might be covered by the Unsolicited Suggestion policy and terms above.
If, after consultation with your attorney, you believe you have rights to legally protected and proprietary intellectual property which is not covered by the Unsolicited Suggestion policy and terms above, you (or your attorney) can contact us at:
Outside Submissions Unit — Legal Compliance
Benjamin Moore & Co., Limited
101 Paragon Drive
Montvale, NJ 07645
If you are not sure about your rights, consult your legal advisor before submitting anything to us.
Our Websites may allow you to register, create a profile or account and may also enable you to submit, provide, transmit, exchange, communicate and display Content (a "Posting"). By Posting, you represent that you own or have the right to engage in the Posting and you specifically agree your Posting will not violate any law or regulation, these Terms and Conditions, or the right of others.
By Posting, you represent and warrant that: (a) the Posting is original to you or fully cleared for use as contemplated herein; (b) the Posting does not and will not, in any way, violate any of the terms of this agreement; (c) the Posting does not contain any libelous, tortious, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any federal, provincial or state statute or regulation; and (d) the Posting is not obscene, vulgar, hateful or in any manner unlawful.
Unless explicitly stated otherwise, Posting is for non-commercial purposes only and you may not post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity. If you believe that any Content on our Websites violates any of these Terms and Conditions, please click here to contact us. We will not respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such information.
Your Posting and any Posting made by someone else under your account, user identification, log-in, password or email is your responsibility and unless and until you notify us that you know or suspect the security of your account, user identification, log-in, password or email may have been compromised, you may be required to defend and indemnify Benjamin Moore for any such Postings as set forth in the Indemnification section below. Please notify us immediately if you suspect someone is using your registration, user identification, log-in, password or email address.
Our Websites may allow you to register and create an account in order to access certain Content on our Websites. As part of the registration process, you will choose a user name and password (or we may assign an initial password, which we will give you the option to change).
In addition, when you register we may give you the option to select and receive certain email notifications and Content from us ("Voluntary Communications"). You will always have the option to unsubscribe from Voluntary Communications.
You are responsible for maintaining the confidentiality of any user name or password you are required to create. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name and password, or your authorization of anyone else to use your user name or password, and you may be required to defend and indemnify us for any such harm as set forth in the Indemnification section below. You agree to immediately notify us if you become aware or believe there is or may have been any unauthorized use of your user name or password or any other need to deactivate your user name or password due to security concerns.
Right to Terminate
We have the right to discontinue, suspend or terminate your use of our Websites at any time, including any time we determine, in our sole judgment, you or your use of our Websites, your Content or any Posting you make may violate these Terms and Conditions. In addition to any other rights and remedies we may have under these Terms and Conditions, we have the right to: (a) refuse to allow you further Posting; (b) remove, modify, re-format or delete your Posting; (c) revoke your right to use the Websites; and (d) use any technological, legal, operational or other means available to enforce these Terms and Conditions.
Links to Other Websites
If you see or use any links or conduits on our Websites which allow you to browse, redirect or visit any other websites, web pages or other internet or web-based locations, it does not mean that Benjamin Moore is associated with or has endorsed, reviewed or even knows anything about that site or page, and we have no obligation, responsibility or liability to you or anyone else if you go to another website, page or address outside our Websites, even if a link on our site allowed you to do so. When you leave our Websites, you should confirm the terms and conditions, privacy and other policies that apply to you since Benjamin Moore neither controls, nor has any responsibility for any third party sites, their practices or anything associated with their operations. In fact, even if another website or web page has the Benjamin Moore name, logo or other identification normally associated with us, it may or may not be authorized by us and you should not assume it is a Benjamin Moore Website, unless it actually says so and the terms and conditions that apply to you are these Terms and Conditions.
The trademarks, logos, service marks, trade names, graphics, designs, copyrights and other properties (collectively the "Trademarks") displayed on Benjamin Moore's website are protected intellectual properties that are registered and unregistered Trademarks. Nothing contained on Benjamin Moore's website should be construed as granting, by implication, or otherwise, any license or right to use any Trademark displayed on this website without the written permission of Benjamin Moore or such third party that may own the Trademark displayed on Benjamin Moore's website. Your misuse of the Trademarks displayed on Benjamin Moore's website, or any other content on Benjamin Moore's website, except as provided herein, is strictly prohibited.
Those trademarks followed by ® or MD are registered trademarks owned by Benjamin Moore & Co., Limited; all others are trademarks of Benjamin Moore & Co., Limited.
ADVANCED PARTICLE TECHNOLOGY®
BENJAMIN MOORE AURA®
BENJAMIN MOORE CENTURY®
BENJAMIN MOORE CLASSICS®
BENJAMIN MOORE COLLECTION®
BENJAMIN MOORE COLOR EXPERTS® and design
BENJAMIN MOORE LES EXPERTS EN COLULEUR ET DÉCORATIONMD and design
BENJAMIN MOORE NATURA®
BENJAMIN MOORE NATURA® and design
BENJAMIN MOORE NATURA RENEW®
BENJAMIN MOORE PROCONNECTION®
GREEN WITHOUT COMPROMISE®
NOUS FAISONS LA DIFFERENCE BENJAMINMD
ONLY THIS CAN®
PAINT LIKE NO OTHER®
PROCONNEXION DE BENJAMIN MOOREMD
QUITE SIMPLY THE FINEST PAINT WE'VE EVER MADE®
REGAL AQUA GRIP®
SEULEMENT CETTE PEINTUREMD
SIGNATURE PAINT DOLLOP®
SUPER SPEC HP®
TOUT SIMPLEMENT NOTRE MEILLEURE PEINTUREMD
triangle "M" symbol®
UNE PEINTURE INÉGALÉEMD
VERT SANS COMPROMISMD
WE MAKE THE BENJAMIN MOORE DIFFERENCE®
CHIP-TECH™ and design
CONÇUE AVEC GENNEX TECHNOLOGIE DE LA COULEURMC and design
ENGINEERED WITH GENNEX COLOUR TECHNOLOGY™ and design
GENNEX COLOUR TECHNOLOGY™ and design
GENNEX TECHNOLOGIE DE LA COULEURMC and design
Disclaimer of Warranties
BENJAMIN MOORE WEBSITES AND ALL CONTENT ARE MADE AVAILABLE "AS IS" AND "AS AVAILABLE", WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE ANY WEBSITE OR CONTENT WILL BE AVAILABLE FOR USE OR THAT ALL CONTENT WILL BE AVAILABLE OR PERFORM AS DESCRIBED OR THAT ANY WEBSITE OR CONTENT IS ACCURATE, COMPLETE OR ERROR FREE. BENJAMIN MOORE MAKES NO WARRANTY REGARDING ANY MALICIOUS OR UNAUTHORIZED CODE AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING YOU HAVE APPROPRIATE SCANNING AND PROTECTIVE MECHANISMS FOR THE SECURITY OF YOUR EQUIPMENT, PROGRAMS AND INFORMATION.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BENJAMIN MOORE, ITS PARENT, AFFILIATES, SUBSIDIARIES, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES AND RESPECTIVE SUCCESSORS AND ASSIGNS, DISCLAIM LIABILITY FOR ANY AND ALL LOSS, DAMAGE, COST AND EXPENSE OF ANY KIND, IN CONNECTION WITH OR ARISING FROM OUR WEBSITES, CONTENT, THESE TERMS AND CONDITIONS AND/OR YOUR OR ANYONE ELSE'S USE OF THESE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.. THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE WEBSITES AND/OR CONTENT, AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.
IN NO EVENT SHALL SUCH PARTY'S TOTAL LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
You shall defend us and the Benjamin Moore Entities against any demands, claims or actions brought against us or the Benjamin Moore Entities arising as a result of any breach or violation of these Terms and Conditions by you ("Claim") and you shall indemnify and hold us and the Benjamin Moore Entities harmless from and against any and all losses, damages, costs and expenses (including attorneys' fees) resulting from any such Claim. We and the Benjamin Moore Entities have the right, at their expense, to assume exclusive defense against any Claim and all negotiations for settlement and you agree, upon request, to cooperate with us and the Benjamin Moore Entities in the defense of any such Claim.
If a dispute should arise between you and Benjamin Moore, we want to provide you with a resolution that is efficient and cost effective by using our customer service team. Almost all customer service disputes can be resolved to the customer's satisfaction by contacting our customer service by email at email@example.com or by phone at 1-855-724-6802. If your dispute cannot be resolved using our customer service team, these Terms and Conditions describe how we shall proceed with the resolution of the dispute.
NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
AGREEMENT TO ARBITRATE DISPUTES
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. ARBITRATION IS A WAIVER OF THE RIGHT TO BRING SUIT IN COURT.
THIS SECTION CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
WE BOTH AGREE TO ARBITRATE: You and Benjamin Moore agree to resolve any claims relating to these Terms and Conditions (other than claims arising from shopnationalaccounts.benjaminmoore.com) through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate Benjamin Moore's intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Benjamin Moore may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Site, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. Thus, you agree that you are waiving your right to sue or go to court to secure relief, and instead agree to the arbitration process as stated in this provision. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures. If there is a conflict between JAMS Rules and the rules set forth in this Agreement to Arbitrate, the rules set forth in this Agreement to Arbitrate will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or Benjamin Moore must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to your local JAMS office.
(3) Send one copy of the Demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Benjamin Moore will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Benjamin Moore will reimburse you for the $25 fee if the arbitrator rules in your favor. Arbitration under this agreement shall be held in Bergen County, New Jersey, or any other location we mutually agree to, subject to New Jersey law. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and Benjamin Moore, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Benjamin Moore. The arbitrator's decision may be entered as a judgment in a court of competent jurisdiction.
WAIVER OF JURY TRIAL: 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 (except those exempted from the arbitration requirement in the “WE BOTH AGREE TO ARBITRATE” paragraph above). Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Benjamin Moore in any provincial, state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BENJAMIN MOORE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by emailing Benjamin Moore at firstname.lastname@example.org and providing the requested information as follows: (1) Your Name; (2) the URL of Terms and Conditions; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms and Conditions. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms and Conditions by using the website.
Choice of Law/Forum Selection
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New Jersey, excluding its conflict of law rules. In any circumstances where these Terms and Conditions permit the parties to litigate in court, you specifically agree and submit to the jurisdiction of the State and Federal Courts situated in the State of New Jersey, City of Montvale and County of Bergen or Federal Courts, Essex County. The Uniform Computer Information Transactions Act does not apply to these Terms and Conditions.
These Terms and Conditions can only be modified by us as described above or by mutual written agreement, signed by an authorized representative of Benjamin Moore.
Headings are purely for reference and shall not affect the meaning of any term or condition.
The provisions of these Terms and Conditions are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision of the provisions are found to be partially or wholly invalid, illegal or unenforceable, such provisions shall be modified or restricted to the extent and in the manner necessary to render them valid, legal, and enforceable. It is expressly understood and agreed between the parties that such modification or restriction may be accomplished unilaterally by us, or alternatively, by disposition of a court of law or arbitrator. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from the Terms and Conditions without affecting the validity, legality or enforceability of any of the remaining provisions.
If you have any questions about our Terms and Conditions, please contact us.
©2019 Benjamin Moore & Co., Limited All Rights Reserved.