BENJAMIN MOORE & CO. TERMS OF SALE FOR ONLINE STORE
Version posted: July 10, 2020
These Terms of Sale (this “Agreement”) are a binding legal agreement between you and Benjamin Moore & Co. (together with its successors and affiliates, and its and their directors, officers, and agents, collectively, “Benjamin Moore,” “we,” “us,” and “our”).
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. BY PLACING AN ORDER THROUGH THE ONLINE STORE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THIS AGREEMENT.
THIS AGREEMENT CONTAINS A MANDATORY DISPUTE RESOLUTION CLAUSE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. SEE SECTION 13 FOR DETAILS. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT PLACE ORDERS THROUGH THE ONLINE STORE.
1. Application. This Agreement applies to your purchases of goods and services ("Products") through the Benjamin Moore Online Store ("Online Store"), including the placing of orders.
2. Additional Terms. This Agreement is subject to the additional terms and conditions contained in the following, which are incorporated herein by reference:
- a. Our Terms and Conditions (governing your use of Benjamin Moore's website, including the Online Store);
b. Our Shipping Policy; and
c. Our Return Policy,
4. Order and acceptance. Your order is an offer to buy, under the terms of this Agreement, the Products listed in your order. After receiving your order, we will send you a confirmation email with your order number and the details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between Benjamin Moore and you will not take place unless and until you have received your order confirmation email. We may process payment for and ship parts of an order separately.
5. Cancellation. You have the option to cancel your order at any time before we ahve sent your order confirmation email by contacting our customer service by email at firstname.lastname@example.org or by phone at 1-855-724-6802. We reserve the right, in our sole discretion, to cancel or refuse any order for any reason at any stage of the online ordering process, including after an order has been submitted and whether or not the order has been confirmed.
6. Prices and availability. Prices and promotions are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed. Products offered for purchase through the Online Store are subject to availability. We strive to communicate accurate pricing and product information, but errors may occur. We are not responsible for any such errors. In the event that an error impacts your order, or a Product ordered is no longer available, we will either contact you for instructions or cancel your order. We reserve the right to change the Products from time in our sole discretion and we will have no obligation to notify you before or after any such changes in the Products.
7. Taxes. Unless you provide us with a valid and correct tax exemption certificates, you are responsible for sales and other taxes associated with yoru purchases through the Online Store.
8. Title and Risk of Loss. Title and risk of loss for the Products pass to you upon our transfer of the Products to the shipping carrier or upon the transfer of the Products to you in a retail store (as applicable). You are responsible for inspecting the Products upon delivery and must note any visible damage on the delivery receipt the carrier asks you to sign. We are not responsible for any visible shipping damages not noted on the delivery receipt.
9. Restrictions. All Products that are sold to you throught the Online Store are for your own use and may not be resold, relabeled, repackaged, or exported.
10. Telephone Communications. Telephone communications with us, our agents or independent contractors may be monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to such monitoring or recording. By providing us with a phone number as your contact number, you expressly authorize us to contact you for non-telemarketing communications on that number via text message or telephone, including via prerecorded or auto-dialed calls.
11. Warranty Disclaimer. All Benjamin Moore-branded Products purchased through the Online Store are subject to any label warranty affixed to the container or packaging of such Products. The above warranties extend only to you and not to any other individual or entity. Our obligation under such warranties is limited, at our option, to the replacement of defective Products or the refund of the purchase price for such defective Products, Benjamin Moore makes no other warranties, either in writing or orally, including on this website or in any marketing brochure or promotional literature. TO THE EXTENT PERMITTED BY LAW, WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES.
12. Limitation of liability. THE REMEDIES DESCRIBED IN PARAGRAPH 11 ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION FOR ANY BREACH OF THE LIMITED WARRANTY DESCRIBED IN THAT SAME PARAGRAPH. OUR AGGREGATE LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED THROUGH THE ONLINE STORE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR LOSS OF PRODUCTION, WORK, USE, BUSINESS, GOOD WILL, REPUTATION, REVENUE OR PROFITS, DIMINUTION OF VALUE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR THE ONLINE STORE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SUCH AS ABOVE. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IF YOU ARE A NEW JERSEY RESIDENT, THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS OR OMISSIONS; AND WE ARE NOT, IN ANY CASE, LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
13. Dispute Resolution and Binding Arbitration.
- a. Resolving Disputes. 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, this Agreement describes how we shall proceed with the resolution of the dispute.
- WE BOTH AGREE TO ARBITRATE: You and Benjamin Moore agree to resolve any claims arising out of or relating to this Agreement, and any ancillary claims that may arise in connection with the same dispute, through final and binding arbitration. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may (1) bring an action in state or federal court solely for injunctive relief to stop unauthorized use or abuse of its intellectual property rights (for example, trademarks, trade secrets, copyrights, or patent rights, but not privacy or publicity rights) without first engaging in arbitration or the informal dispute-resolution process described above; and (2) seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
- 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 this Agreement 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, the rules set forth in this Agreement 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.
- AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and Benjamin Moore. 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 JAMS Streamlined Arbitration Rules and Procedures, and this Agreement. 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. YOU AND BENJAMIN MOORE HEREBY WAIVE THEIR RESPECTIVE 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. 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 this Agreement; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in this Agreement. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept this Agreement by using the Online Store, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Paragraph 13. If you opt-out of these arbitration provisions, Benjamin Moore also will not be bound by them.
- Governing Law. This Agreement 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 Agreement 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, for Federal Courts, Essex County). The Uniform Computer Information Transactions Act does not apply to these Terms and Conditions.
- Force Majuere. We will not be liable or deemed to be in breach of this Agreement for any delay or failure to perform any or all of our obligations by reason of fire, explosion, accidents, hurricanes, tornados, flood, earthquakes, unusually severe or abnormal weather, war or threat of war, riots or civil commotion, national emergency, revolution, insurrection, epidemic, acts of terrorism, acts of any governmental authority or agent, interruption of or delay in transportation of Products, lockouts, strikes or other labor disputes (whether or not relating to our workforce), shortage of materials or raw materials, inability to obtain raw materials at a reasonable price, telecommunications breakdown, power outages, acts of God or any other circumstance or event beyond our reasonable control. If we are rendered unable by force majeure to carry out any or all of our obligations under this Agreement, we will use reasonable efforts to give notice to you by email.
- Entire Agreement. The terms and conditions herein constitute the entire agreement between the parties, and supersede all prior understandings and representations (oral or written) between you and Benjamin Moore with respect to the subject matter hereof. No waiver, alteration or modification of this Agreement shall be binding on us unless made in writing and signed by an authorized representative of Benjamin Moore. Our failure to insist upon strict adherence to any term of this Agreement shall not be considered a waiver or deprive us of the right to insist upon strict adherence to that term or any other term of this Agreement. The shipment of Products to you hereunder shall not be a waiver of the requirements of this paragraph.
b. No Class or Representative 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, and private attorney general actions are not allowed. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in this Paragraph 13 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
c. 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.
IF YOU ARE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. Arbitration under this Agreement shall be held at any reasonable location in the United States convenient for you. 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.