Terms of Use

GAF Terms of Use

Welcome to the website and mobile application (collectively, the “Site”) of GAF Materials LLC d/b/a GAF (“GAF,” “we,” “our,” or “us”). Your use of the Site is subject to these Terms of Use (“Terms”), which we may update from time to time. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE.

By accessing the Site in any way, including, without limitation, browsing the Site, using the Site, 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, EXCEPT WHERE PROHIBITED BY APPLICABLE LAW (WHICH FOR CONSUMERS MAY INCLUDE THE PROVINCE OF QUEBEC), conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Delaware law. You represent that you are capable of entering into this binding agreement with us.

FURTHER, UNLESS PROHIBITED BY APPLICABLE LAW, BY USING THIS SITE YOU AGREE THAT DISPUTES BETWEEN YOU AND GAF WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION (INCLUDING CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE TERMS), AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR A TRIAL BY JURY. BELOW, THESE TERMS EXPLAIN SOME EXCEPTIONS TO THIS AGREEMENT AND HOW YOU CAN OPT OUT OF ARBITRATION IF YOU SO CHOOSE. IF YOU DO NOT OPT OUT OF ARBITRATION AS DESCRIBED IN THESE TERMS, THEN YOU WILL BE BOUND BY THE ARBITRATION AND CLASS WAIVER PROVISIONS.

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 materials you may submit, and you expressly disclaim any rights or causes of action you may have with respect to any materials you may submit.

Changes to these Terms

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW (WHICH FOR CONSUMERS MAY INCLUDE THE PROVINCE OF QUEBEC), GAF reserves the right, at any time and without notice, to add to, change, update or modify these Terms by posting such change, update, or modification on the Site. You should check the Site regularly to see the most recent version of these Terms. To reject the revised Terms, prior to their taking effect, you must (a) permanently discontinue use of the Site; and (b) email GAF at GeneralCounsel@gaf.com with a clear request to terminate these Terms with GAF. If you do not do so, the revisions will take effect at the earlier of: (i)12:00 p.m. Eastern time on the 15th day after the earlier of when GAF posts them or otherwise notifies you of such changes, such as via email; (ii) your first ever use of a new or changed feature of the Site that is subject to the revised Terms; or (iii) your acceptance of the updated Terms via a click-through process or some other acceptance mechanism that GAF specifies. Notwithstanding this provision, any changes to the “Disputes” Section of these Terms will be handled as set forth in Section F (“Changes to this Disputes Section”) of the “Disputes” Section of these Terms.

GAF Content

The Site, its contents, features and functionality, including, without limitation, code, text, graphics, trademarks, logos, images, video, audio, documents and the design, presentation, selection and arrangement of the foregoing (collectively, "Content") are owned by or licensed to GAF, and are protected in the U.S. and internationally under copyright, trademark, and other intellectual property laws.

You may view, download and print information about GAF products and services (such as data sheets, brochures, and installation instructions) for personal, non-commercial purposes provided that you do not modify or alter the Content in any way, delete or change any copyright or trademark notice, or violate these Terms in any way. Except as expressly permitted herein, you will not copy, reproduce, republish, publicly display, transmit, or distribute the Content in any way, without GAF's express prior written consent.

Notice and procedure for making claims of copyright infringement under the Digital Millennium Copyright Act.

If you are a copyright owner and you believe that your copyright rights have been violated, please review our Proprietary Rights Complaint Process and Notification Form and follow the instructions provided.

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 harvest or otherwise collect or store personal data about other users of the Site, including, without limitation, email addresses, without the express consent of such 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 advance 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; and (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 any of its features.

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. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW (WHICH FOR CONSUMERS MAY INCLUDE THE PROVINCE OF QUEBEC), 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, without limitation, 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 also waive your moral rights to the User Content and hereby grant each user of the Site a non-exclusive license to access your User Content through the Site.

Indemnification

You will indemnify and hold GAF, its parents, subsidiaries, affiliates, contractors and agents, and each of their officers, directors, employees, and agents (collectively, the “GAF Parties”) harmless from any claims, damages, and expenses, including, but not limited to, reasonable legal fees and costs, related to your use of the Site or violation of these Terms, or any use of the Site GAF content or violations of the Terms by your employees, contractors, agents or representatives or which arises from the use of User Content you submitted, posted, or otherwise provided to GAF or the Site.

Site Changes and Responsibility for and Our Right to Edit or Delete User Content

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. GAF does not control, is not responsible for reviewing, 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, and 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

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW (WHICH FOR CONSUMERS MAY INCLUDE THE PROVINCE OF QUEBEC), the GAF Parties make no representations about the reliability of the features of the Site, the GAF Content, User Content, or any other feature, and disclaim 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. The GAF Parties make no representations regarding the amount of time that any GAF Content or User Content will be preserved.

The GAF Parties do 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.

We attempt to ensure that information on this Site is complete, accurate, and current. Despite our efforts, the information on the Site may occasionally be inaccurate, incomplete, or out of date. The GAF Parties make no representation as to the completeness, accuracy, or correctness of any information on the Site. In addition, we may make changes to information about products without notice. The product information on the website may differ from the product you may purchase.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL CONSEQUENTIAL OR OTHER DAMAGES; AS A RESULT, THE BELOW LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND THE FOLLOWING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY OR QUEBEC TO THE EXTENT DAMAGES TO SUCH NEW JERSEY OR QUEBEC RESIDENT ARE THE RESULT OF COMPANY'S NEGLIGENT, FRAUDULENT OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT. THE SITE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NO WARRANTIES OR CONDITIONS, 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, WITHOUT LIMITATION, NEGLIGENCE, SHALL ANY GAF PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, “DAMAGES”) THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SITE, NOR SHALL ANY GAF PARTIES 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 THE GAF PARTIES 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 THE GAF PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Third-Party Websites

The Site may hyperlink to sites not maintained by or related to GAF. Hyperlinks are provided as a service to users and are not sponsored by or affiliated with the Site or GAF, and the GAF Parties make no representations or warranties about the content, completeness, or accuracy of those third-party sites. Information you submit at a third-party site accessible from the Site is subject to the terms of that site's privacy policy, and GAF has no control over how your information is collected, used, or otherwise handled.

Mobile Application Updates and Upgrades

You acknowledge that GAF may from time to time issue updated or upgraded versions of the mobile application, and may (subject to your device settings) automatically electronically update or upgrade the version of the mobile application that you are then currently using on your mobile device. You consent to receive updates or upgrades to the mobile application automatically without providing further consent each time. The mobile application (including, without limitation, any updates or upgrades) may: (a) cause your device to automatically communicate with our servers to deliver the functionality described in the mobile application description or through new features as they are introduced, and to record usage metrics; (b) affect preferences or data stored on your device; and (c) collect personal information as set out in our Privacy Policy. We are not responsible if an update or upgrade affects how the mobile application works if this is caused by your own equipment or device not supporting the update or upgrade. You can withdraw consent at any time under certain conditions by contacting us at Compliance@gaf.com.

Disputes

PLEASE READ THIS SECTION CAREFULLY AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING, WITHOUT LIMITATION, YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO ARBITRATION) AND YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS OR REPRESENTATIVE ACTION.

THE LAWS OF CERTAIN JURISDICTIONS, WHICH FOR CONSUMERS MAY INCLUDE THE PROVINCE OF QUEBEC, DO NOT ALLOW FOR MANDATORY ARBITRATION OR CLASS ACTION WAIVERS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE PROVISIONS BELOW MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

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As detailed below, the Terms mandate, with limited exceptions, that all disputes between you and GAF be resolved first through an informal dispute resolution process. In the event informal resolution fails, these Terms further mandate that all disputes (except those identified in Section C (“Exceptions to Arbitration”)) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, provincial, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of this “Disputes” Section carefully as it may significantly affect your legal rights.

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• Informal Dispute Resolution.

You and GAF (Individually, a “Party” and collectively, the “Parties”) agree to make a diligent, commercially reasonable attempt to resolve informally any disputes arising out of or concerning the provisions of these Terms. Failure to engage in this informal process could result in the award of fees against you in arbitration.

To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against GAF that you initiate, you agree to send to GAF at generalcounsel@gaf.com: (i) a written description of the dispute and (ii) any email address(es) or other identifying information associated with your use of the Site. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that GAF initiates, we will send a written description of the dispute to any email or physical address we can associate with your use of the Site, if any.

If the parties' dispute is not resolved within sixty (60) days after receipt of the written description, you and GAF agree to resolve any remaining dispute through the additional dispute resolution provisions below.

Except with respect to IP disputes exempt from arbitration under Section C(1), or applications for provisional relief pursuant to Section C(3), a good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

• Binding Arbitration (the “Arbitration Agreement”).

After the parties have engaged in informal dispute resolution as set out above (in Section A (“Informal Dispute Resolution”)), and only if those efforts fail, then either party may initiate arbitration as set forth in this Section B.

If you determine to initiate arbitration, a copy of the arbitration demand must be emailed to generalcounsel@gaf.com. If GAF is initiating arbitration, it will serve a copy of the demand to the email or physical address associated with your use of the Site, if any.

• Mutual Arbitration Agreement.

Except as set forth in Section C (“Exceptions to Arbitration”) below, you and GAF agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these Terms — including, but not limited to, any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section B (collectively, the “Arbitration Agreement”).

Because your use of the Site and any other GAF service affects interstate commerce, this Arbitration Agreement, including, without limitation, its interpretation and enforcement, shall be governed by the Federal Arbitration Act (“FAA”).

This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth in Sections E (“30-Day Right to Opt Out”) and F (“Changes to this Disputes Section”).

Except as set forth in Section B(3), if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

• WAIVER OF RIGHTS INCLUDING JURY TRIAL.

THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE ANY DISPUTE, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND GAF ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

• CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER.

YOU AND GAF ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION B(3), SECTION B(5)(v) AND SECTION B(5)(vii), ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER REPRESENTATIVE ACTION (INCLUDING, WITHOUT LIMITATION, ANY PRIVATE ATTORNEY GENERAL ACTION), AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY'S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, YOU AGREE THAT ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF GAF PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

With the exception of this Section B(3), Section B(5)(v), and Section B(5)(vii), if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision(s) were not contained herein. If, however, this Section B(3), Section B(5)(v), or Section B(5)(vii) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor GAF shall be entitled to arbitrate their dispute.

• Arbitration Location: Remote In Most Circumstances.

If the amount in controversy between you and GAF is less than $10,000, then the arbitration will be conducted solely by submission of written materials that you and GAF submit to the arbitrator, unless (i) the arbitrator determines that a hearing is necessary or (ii) the parties agree otherwise. In such cases, the parties agree to remote participation in the hearing by video-conference or telephone.

If the amount in controversy between you and GAF exceeds $10,000, either party may request an arbitration hearing, and that hearing shall presumptively be held via video-conference or telephone unless (i) the arbitrator determines there is good cause to hold an in-person hearing or (ii) the parties agree otherwise. In the event there is an in-person hearing: the location of the hearing will be determined by mutual agreement of the parties or, if the parties cannot agree, by the arbitrator in accordance with the applicable provider rules and law.

• Arbitration Procedures.

• The Provider & Fees.

The arbitration will be conducted in English, administered by National Arbitration and Mediation (“NAM”), and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.

Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with, as applicable, NAM's Comprehensive Dispute Resolution Rules and Procedures, Comprehensive Fees and Costs, Fees For Disputes When One of the Parties is a Consumer, and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation's Commercial Dept at commercial@namadr.com.

You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM's Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this “Disputes” Section while such challenge remains pending before NAM the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

• Arbitrator's Authority.

The arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with the informal dispute resolution procedures contemplated by this Arbitration Agreement.

• Arbitration Demand Must Contain Sufficient Information.

Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party's identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms . The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including, without limitation, for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these Terms.

• Dispositive Motions.

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.

• Batching.

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section B(5)(i) if NAM is unavailable) against GAF within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including, without limitation, any related fee reduction determined by NAM (or another arbitration provider selected in accordance with B(5)(i) if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including, without limitation, fees owed by GAF and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.

Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted, including if they will be conducted remotely.

You agree to cooperate in good faith with GAF and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including, without limitation, the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.

This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.

• Mediation Following First Batch in a Mass Filing.

The results of the first completely adjudicated batch of demands in a Mass Filing will be given to a NAM mediator selected from a group of 5 mediators proposed by NAM, with GAF and the remaining claimants' counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, GAF, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either GAF or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither GAF nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.

• No Class or Representative Arbitration Absent Written Consent.

Unless GAF otherwise consents in writing, which it may do on a case-by-case basis, GAF does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in Section B(3), Section B(5)(v) and this Section B(5)(vii). Nothing in this provision prohibits the parties from participating in a class-wide settlement.

• Arbitration Award.

The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the procedures set forth in this Arbitration Agreement, and also must be consistent with the terms of the “Representations and Limitations of Liability” Section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys' fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

• Exceptions to Arbitration.

Notwithstanding the parties' agreement to resolve all disputes through binding arbitration as set forth in Section B (“Binding Arbitration (the “Arbitration Agreement”)):

• IP Disputes.

Either party's claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall be exclusively brought in a state, provincial or federal court of competent jurisdiction as provided in these Terms.

• Small Claims Court and Statutes of Limitation.

Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court's jurisdiction.

Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be in fact be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.

• Provisional Relief.

Notwithstanding the Arbitration Agreement in Section B (“Binding Arbitration (the “Arbitration Agreement”)) above, you and GAF agree that either party may apply to a court of competent jurisdiction for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.

• Choice of Law, Venue, and Jurisdiction/Service of Process.

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW (WHICH FOR CONSUMERS MAY INCLUDE THE PROVINCE OF QUEBEC):

• Choice of Law. These Terms and all disputes between you and GAF, whether in arbitration or court (if a dispute is non-arbitrable under these Terms or for any other reason), shall be governed by the laws of the United States and the laws of New York, without regard to conflicts of law provisions—in other words, any federal law or New York law, including, without limitation, any conflict of law principle, that would provide for the application of the laws of another jurisdiction other than the United States or New York shall not apply.
• Venue, Jurisdiction & Service. By agreeing to these Terms, you agree that to the extent any dispute is not arbitrable—to include any arbitration-related litigation such as a motion to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on an arbitration award—the dispute must be resolved exclusively by a court of competent jurisdiction, federal or state (including, without limitation, small claims court), located in New York County, New York, and no other court. You and GAF consent to the exercise of personal jurisdiction over you by such courts with respect to any dispute and hereby waive any and all jurisdictional and venue defenses otherwise available to you in them. You further agree to accept service of process by U.S. or certified mail from GAF or these courts.

 

• 30-Day Right to Opt Out.

You have the right to opt-out and not be bound by the Arbitration Agreement by sending written notice, signed by you, of your decision to opt-out to the following address: GeneralCounsel@gaf.com. The notice must be sent within 30 days of [INSERT DATE THAT THIS REVISION IS POSTED] or your first use of the Site, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of the Arbitration Agreement, GAF also will not be bound by it.

If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Terms will not apply to claims not yet filed. Moreover, even if you opt out of the Arbitration Agreement in accordance with this Section E, other provisions of the “Disputes” Section will continue to apply, including for example, Section A (“Informal Dispute Resolution”), Section D (“Choice of Law, Venue, and Jurisdiction/Service of Process”), and Section G (“Class Action Waiver”).

If you opted out of arbitration pursuant to a prior version of these Terms in accordance with the requirements set forth in that version, GAF will continue to honor such valid opt out.

• Changes to this Disputes Section.

GAF will provide 30 days' notice of any material changes to the “Disputes” Section by posting a notice on the Site, informing you via email, or as otherwise legally required. Material changes will become effective thirty (30) days after notice is provided and will apply to all claims not yet filed regardless of when they accrued. Subject (where applicable) to the proper exercise of the opt out right described in Section E(“30-Day Right to Opt Out”), and to any further conditions in the modified Terms, unless you follow the termination procedure described in the “Changes to these Terms ”Section above, you agree that any unfiled claims are subject to the entire revised “Disputes” Section. If you terminate this contract before the updates to the “Disputes” Section take effect, then the version of this Section that was in effect on the effective date of your termination will continue to apply.

• Class Action Waiver.

To the extent permissible under applicable law, you agree that any dispute between you and GAF that is not subject to arbitration for any reason may only be pursued by you on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, collective, consolidated, or representative action. To the extent a dispute between you and GAF is subject to arbitration, the provisions set forth above shall apply, including, without limitation, those regarding class arbitration, private attorney general arbitration, arbitration involving joint or consolidated claims, and batching.

Miscellaneous

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.

On certain areas of the Site, you may be given the ability to provide us with personally identifiable information. Please read our Privacy Policy for more information about our information collection use, and disclosure practices.

The failure of GAF to comply with these Terms because of an act of God, war, fire, riot, terrorism, pandemic, earthquake, actions of federal, provincial/territorial, state or local governmental authorities or for any other reason beyond the reasonable control of GAF, shall not be deemed a breach of these Terms. If GAF fails to act with respect to your breach or anyone else's breach on any occasion, GAF is not waiving its right to act with respect to future or similar breaches. Except as provided in the “Disputes” Section, if any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

These Terms constitute the entire agreement between you and GAF regarding the use of the Site and your account on the Site.

It is the express wish of the parties that these Terms and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigé en anglais.