Tomkins Ltd. Building Products Family of Companies
Direct to Consumer Terms of Sale
(revised 19 Aug. 2011 – applicable to all purchases made after that date)
These Terms and Conditions of Sale (these “Terms”) apply to all purchases that you (you or the company or other legal entity on whose behalf you are making a purchase, “Buyer”) made from the Tomkins Ltd., Building Products Division Company (e.g., Air Systems Components, Inc., Koch Filter Corporation, Ruskin Company, Selkirk Corporation, Hart & Cooley, Inc., Aquatic or other Tomkins company operating the website through which you are making a purchase) (“Seller”).
READ THESE TERMS, AND CONSIDER PRINTING THEM FOR YOUR RECORDS. THIS DOCUMENT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE THAT MAY AFFECT ANY CLAIMS YOU HAVE AGAINST SELLER.
By placing your order for Product, you accept and are bound to the terms and conditions of this Agreement. If you have placed an order but do not wish to be subject to these terms and conditions, you must promptly cancel your order. THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH SELLER, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER SELLER TERMS AND CONDITIONS APPLY TO THE TRANSACTION.
Please note – our Products may change from time to time, and the Product you order may not look exactly like the images available on our websites or in our catalogues. Any returns of Products are subject to Seller’s return policy, which you may review here.
1. Other Documents. These Terms may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both Buyer and Seller.
2. Payment Terms; Orders; Quotes; Interest. Terms of payment are within Seller’s sole discretion, and unless otherwise agreed to by Seller, payment must be received by Seller prior to Seller’s acceptance of an order. Payment for the products will be made, in advance of shipment, by credit card or some other prearranged payment method unless credit terms have been agreed to by Seller, in which case any invoices are due and payable within the time period noted on your invoice, measured from the date of the invoice. Seller may invoice parts of an order separately. Your order is subject to cancellation by Seller, in Seller’s sole discretion. Seller is not responsible for pricing, typographical, or other errors in any offer by Seller and reserves the right to cancel any orders arising from such errors.
3. Shipping; Taxes; Title; Risk of Loss. Buyer is responsible for all shipping, handling and taxes, including all sales, use, excise, value-added taxes and other taxes applicable to the Products or the sale of the Products to Buyer. Unless Buyer provides Seller with a valid and correct tax exemption certificate applicable to Buyer’s purchase of Product and the Product ship-to location, Buyer is responsible for sales and other taxes associated with the order. Seller provides the Products EX Works (Incoterms 2010), Seller’s facility or warehouse. Seller shall not be liable for any Goods lost, damaged, or destroyed while in transit, and Buyer acknowledges and agrees that any risk of such loss, damage, or destruction transfers to, and is assumed by, Buyer upon delivery of the Products to a common carrier or when otherwise placed in transit. Buyer must notify Seller within 21 days of the date of your invoice or acknowledgement if Buyer believes any part of the purchase is missing, wrong or damaged. Shipping and delivery dates are estimates only.
4. Warranties and Disclaimers. THE LIMITED WARRANTIES APPLICABLE TO THE PRODUCTS CAN BE FOUND IN THE DOCUMENTATION THAT SELLER PROVIDES WITH THE PRODUCT, FOR EXAMPLE IN ANY INSTRUCTIONS, PACKING SLIP OR ACKNOWLEDGEMENT FROM SELLER. SELLER MAKES NO OTHER WARRANTIES FOR ANY PRODUCTS SOLD BY SELLER, AND ALL PRODUCTS ARE OTHERWISE PROVIDED BY SELLER “AS IS” WITHOUT ANY OTHER FORM OF WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MERCHANTABILITY. SOME STATES DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. SELLER WARRANTIES ARE EFFECTIVE ON PAYMENT IN FULL, AND SELLER IS NOT OBLIGATED TO HONOR ANY WARRANTY UNTIL SELLER RECEIVES PAYMENT IN FULL.
Sole and Exclusive Remedy: Seller’s standard practice with respect to warranty claims is to repair or replace the Product with substantially equivalent product. Unless otherwise expressly acknowledged by Seller, the repair or replacement of any Product that fails to meet Seller’s warranties constitutes Seller’s sole and exclusive obligation and Buyer’s sole and exclusive remedy.
5. Return Policies; Exchanges. Seller’s return policy can be found at by clicking here and Buyer agrees to those terms. Note that under the terms of the Return Policy, not all Products may be returned.
6. Changed or Discontinued Product. Seller’s Product lines and selection may be updated and changed at any time, and Seller may revise and discontinue Product at any time without notice to Buyer. This may limit Buyer’s ability to purchase the same or similar Products in the future, or to exchange Products for the same or similar items.
7. Limitation of Liability. SELLER DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, OR ANY LOST PROFITS OR LOSS OF BUSINESS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. BUYER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, SELLER IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT.
8. Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. If you export the Product outside of the Unites States, you acknowledge and agree that you will comply with all laws and regulations of the United States and the country into which you import the Product.
9. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND SELLER ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS THAT RESULT FROM THIS AGREEMENT, SELLER’S ADVERTISING, OR ANY RELATED PURCHASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
10. Dispute Resolution and Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN BUYER AND SELLER, ITS AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, ASSIGNS, AFFILIATES (COLLECTIVELY FOR PURPOSES OF THIS PARAGRAPH, “SELLER”) ARISING FROM OR RELATING TO THESE TERMS, THEIR INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS THAT RESULT FROM THESE TERMS (INCLUDING, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SELLER’S ADVERTISING, OR ANY RELATED PURCHASE, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) OR JAMS.
ARBITRATION PROCEEDINGS SHALL BE GOVERNED BY THIS PROVISION AND THE APPLICABLE PROCEDURES OF THE SELECTED ARBITRATION ADMINISTRATOR, INCLUDING ANY APPLICABLE PROCEDURES FOR CONSUMER-RELATED DISPUTES, IN EFFECT AT THE TIME THE CLAIM IS FILED. THE ARBITRATION OR SMALL-CLAIMS COURT PROCEEDING WILL BE LIMITED SOLELY TO THE DISPUTE OR CONTROVERSY BETWEEN CUSTOMER AND SELLER.IN ANY DISPUTE.
NEITHER CUSTOMER NOR SELLER SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. THE INDIVIDUAL (NON-CLASS) NATURE OF THIS DISPUTE PROVISION GOES TO THE ESSENCE OF THE PARTIES’ DISPUTE RESOLUTION AGREEMENT, AND IF FOUND UNENFORCEABLE, THE ENTIRE ARBITRATION AND DISPUTE RESOLUTION PROVISION SHALL BE SEVERED FROM THE REST OF THESE TERMS AND NOT BE ENFORCED.
CONSUMER CLAIMANTS (INDIVIDUALS WHOSE TRANSACTION IS INTENDED FOR PERSONAL FAMILY OR HOUSEHOLD USE) MAY ELECT TO PURSUE THEIR CLAIMS IN SMALL-CLAIMS COURT RATHER THAN ARBITRATION, PROVIDED THAT SUCH CLAIMS ARE PROPER FOR FILING WITHIN SMALL-CLAIMS COURT.
YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. FOR INFORMATION ON AAA OR JAMS, CONTACT THE FOLLOWING: AMERICAN ARBITRATION ASSOCIATION, 335 MADISON AVENUE, 10TH FLOOR, NEW YORK, NY 10017, WWW.ADR.ORG; JAMS, 45 BROADWAY, NEW YORK, NY 10005, (800) 352-5267, WWW.JAMSADR.COM.