By accessing the Site in any way, including, without limitation, browsing the Site, using a mobile application, using information obtained from the Site, and/or submitting information to GAF, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including, but not limited to, conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Delaware law.
From time to time we may update the Site and these Terms. Your use of the Site after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. GAF may, in its sole discretion, and at any time, discontinue the Site or any part thereof, with or without notice, or may prevent your use of the Site with or without notice to you. You agree that you do not have any rights in the Site and that GAF will have no liability to you if the Site is discontinued or your ability to access the Site or any content you may have posted on the Site is terminated.
By accessing the Site, you acknowledge and agree that any materials, ideas or other communications you transmit to us in any manner and for any reason will not be treated as confidential or proprietary. Should you submit such materials, you understand that you have no ownership rights in any ideas you may submit, and you expressly disclaim any rights or causes of action you may have with respect to any materials you may submit.
Content on the Site that is provided by GAF or its licensors, including certain graphics, photographs, artwork, merchandise, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“GAF Content”) is the property of GAF and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.
Unless otherwise specified on the Site, you agree not to download, display or use any GAF Content located on the Site for use in any brochures, marketing materials, publications, in public performances, on websites other than the Site or in any other medium for any commercial purpose. You also agree not to download, display or use any GAF Content located on the Site in connection with products or services that are not those of GAF, in any other manner that is likely to cause confusion among consumers, that disparages or discredits GAF and/or its licensors, that dilutes the strength of GAF’s or its licensor’s property, or that otherwise infringes GAF’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any GAF Content, User Content (as defined below), or third party content that appears on the Site.
If you are a trademark or copyright owner and you believe that your trademark or copyright rights have been violated, please go to our Proprietary Rights Complaint Process and follow the instructions at that area.
Use of the Site and Posting Policy
From time to time on certain areas of the Site you may be able to submit comments, photographs, and certain other materials, such as contest or sweepstakes materials (“User Content”).
The following requirements apply to your use of the Site, including, without limitation, any User Content you may submit to us: (a) you will not use any electronic communication feature of the Site for any purpose that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by GAF; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not collect or store personal data about other users; (d) you will not upload, post, reproduce or distribute any content that contains personal information about any individual, violates the privacy/publicity of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential; (e) you will not use the Site for any commercial purpose not expressly approved by GAF in writing; (f) you will not impersonate any person or organization, including without limitation, the personnel of GAF, or misrepresent an affiliation with another person or organization; (g) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (h) you will not upload, post, email, or otherwise transmit any material that contains viruses, corrupted files, or any other computer code, software, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment or that may adversely affect the operation of the Site, or feature of the Site.
You understand and agree that you have no ownership rights in any account you may have with us or other access to the Site or features therein. GAF may cancel your account and delete all User Content associated with your account at any time, and without notice, if GAF deems that you have violated these Terms, the law, or for any other reason. GAF assumes no liability for any information removed from the Site, and reserves the right to permanently restrict access to the Site or a user account.
By displaying, publishing, or otherwise posting any User Content on or through the Site, you hereby grant to GAF a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Content, as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, in video or music software computer programs. You continue to retain all ownership rights in your User Content, and you continue to have the right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own the User Content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree to indemnify and hold GAF, its parents, subsidiaries, affiliates, contractors and agents, and each of their officers, directors, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your use of the Site or violation of these Terms, or any use of the Site or violations of the Terms by your dependents or which arises from the use of User Content you submitted, posted, or otherwise provided to GAF or the Site.
Responsibility for and Our Right to Edit or Delete User Content
GAF does not control, is not responsible to review, and does not necessarily regularly review any User Content. Notwithstanding the foregoing, GAF reserves the right to review any User Content at any time in its sole discretion, for any reason or no reason, and to delete or edit any User Content with or without notice. GAF is not responsible or liable for damages of any kind arising from any User Content even when GAF is advised of the possibility of such damages, or from GAF’s alteration or deletion of any posting.
Disclaimer of User Content
The information and opinions expressed in User Content on the Site are not necessarily those of GAF or its content providers, advertisers, sponsors, affiliated or related entities, and GAF makes no representations or warranties regarding the User Content. GAF does not represent or guarantee the truthfulness, accuracy, or reliability of any User Content or determine whether User Content violates the rights of others. You acknowledge that any reliance on material posted by other users will be at your own risk.
Accounts, Security, Passwords
If the Site requires you to open an account, you must complete the specified registration process by providing us with current, complete, and accurate information as requested by the applicable online registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data and any loss caused by your failure to do so is your responsibility. You may be asked to choose a password and a user name. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify GAF immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. GAF is not 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.
Representations and Limitations of Liability
GAF makes no representations about the reliability of the features of the Site, the GAF Content, User Content, or any other feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. GAF makes no representations regarding the amount of time that any GAF Content or User Content will be preserved.
GAF does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content.
THE SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE SITE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL GAF BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SITE, NOR SHALL GAF BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND GAF’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO SITE RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL GAF OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, INCLUDING, WITHOUT LIMITATION, ANY GOODS OR SERVICES PURCHASED THROUGH THE SITE AND/OR THE SUBMISSION OF AND/OR GAF’S USE OR DISTRIBUTION OF USER CONTENT, EVEN IF GAF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Third Party Websites
Both you and GAF acknowledge and agree that no partnership is formed and neither of you nor GAF has the power or the authority to obligate or bind the other.
a. Resolution. You and GAF (Individually, a “Party” and collectively, the “Parties”) agree to make a diligent, commercially reasonable attempt to resolve any disputes arising out of or concerning the provisions of these Terms. If the Parties are unable to resolve a dispute within 15 days after notice from one Party to the other, except for your misuse of the GAF trademarks, such dispute shall be settled by final and binding arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) at the offices of the AAA in the state nearest the location of your offices. (For claims arising out of the use of the website located at GAF.CA, the arbitration would be handled by the International Centre for Dispute Resolution division of the American Arbitration Association.) Within thirty (30) days after an arbitrator has been selected, the Parties shall provide all documents and electronically stored information (“ESI”) related to or necessary to the prosecution or defense of any claim, defense or legal theory presented in the arbitration by either Party. The Parties shall only be required to produce ESI that is stored in a reasonably accessible medium. No other document requests, interrogatories or requests for admissions shall be permitted. If either Party desires to file a dispositive motion, that Party must first submit a letter to the arbitrator outlining the legal and factual issues that it contends are ripe for summary disposition. The opposing Party shall have five (5) days to submit a letter detailing its position on the requested motion. Within two (2) weeks of submission of the opposing Party’s letter, the arbitrator shall determine whether the requesting Party shall be permitted to file a dispositive motion. The decision of the arbitrator shall be final and binding upon the Parties and shall be set forth in a written reasoned opinion, and any award may be enforced by either Party in any court of competent jurisdiction. Any award of the arbitrator shall include interest from the date of any damages incurred for breach or other violation of these Terms, and from the date of the award until paid in full, at the rate of one percent (1%) per month compounded monthly. Except as may be required by law, neither Party may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the other Party.
(i) THE ARBITRATION OF DISPUTES PURSUANT TO THESE TERMS SHALL BE IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. YOU AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW:
(a) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE SITE AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION;
(b) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE;
(c) UNDER NO CIRCUMSTANCES WILL YOU BE PERMITTED TO OBTAIN ANY AWARD FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND
(d) YOUR REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND YOU IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU.
(ii) In the event that the claimant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, GAF will pay as much of the claimant’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
(iii) If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor GAF shall be entitled to arbitrate their dispute.
b. Injunctive Relief. You acknowledge that irreparable injury may result to GAF and its business upon the unauthorized use of its trademarks and/or unauthorized disclosure of GAF’s confidential and/or proprietary information and that money damages may not be a sufficient remedy for any such harm. You therefore agree that upon any act or threatened act of trademark infringement or unauthorized disclosure of information which GAF believes is confidential and/or proprietary, GAF shall be entitled, in addition to such other remedies now or hereafter available at law, in equity, by statute or otherwise, to seek damages and relief as may be available under applicable law, including obtaining a temporary restraining order and/or a permanent injunction prohibiting you from engaging in any such act or specifically enforcing these Terms, as the case may be, without proof of damages or posting a bond.
c. Governing Law; Remedies. These Terms shall be interpreted and construed under the substantive laws of the State of Delaware without reference to its conflict of laws principles, except to the extent governed by the United States Trademark Act of 1946 or other superseding federal law. All remedies under these Terms shall be cumulative and not exclusive.
e. These Terms constitute a binding agreement between you and GAF, and is accepted by you upon your use of the Site or your account. These Terms constitute the entire agreement between you and GAF regarding the use of the Site and your account. By using the Site you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.
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