Master Flow QuickConnect™ EULA
Master Flow QuickConnect™
Effective date May 9, 2022
This Master Flow QuickConnect End User License Agreement (this “EULA”) is a legal agreement governing your access to and use of the Master Flow QuickConnect mobile application and all data and content that is accessed or utilized by such mobile application (collectively, the “App”) in connection with the operation and control of the Master Flow Power Attic Vent you connect to the App (the “Fan”). The parties to this EULA are you and GAF. You can use the Fan without the App. Accepting this EULA is not required to use the Fan.
Your access to and use of the App is subject to this EULA and GAF’s privacy policy currently located at https://gaf.com/en-us/about-us/privacy-legal/privacy-policy (the “Privacy Policy”). It is important that you carefully read and understand the terms and conditions of this EULA and the Privacy Policy. By clicking the “I Accept” button, or using any other mechanism to accept this EULA, or by accessing or using the App, effective immediately you are bound by and agree to comply with this EULA and you consent to GAF’s handling of information as described in the Privacy Policy. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA AND CONSENT TO GAF’S HANDLING OF INFORMATION AS DESCRIBED IN THE PRIVACY POLICY, YOU ARE NOT AUTHORIZED TO CLICK THE “I Accept” BUTTON, OR OTHER MECHANISM, OR TO ACCESS OR USE THE APP.
From time to time, GAF may update this EULA by posting the updated version to https://gaf.com/fanEULA (or another location specified there) and updating the “Last updated” date at the top of the page containing the revised text. Unless you reject the update by deleting the App and emailing GAF at LLBP-EULA@gaf.com with a notice of termination of this EULA prior to any of the following, you will be deemed to accept the changes and they will take effect at the earlier of: (a) 12:00 p.m. Eastern time on the 15th day after GAF posts it or notifies you of such changes, such as via email; (b) your first ever use of a new or changed feature of the App that is subject to an updated portion of this EULA; or (c) your acceptance of the updated EULA via a click-through process or some other method that GAF specifies. You agree to review this EULA periodically to ensure that you are familiar with the most recent version. If you reject an update to this EULA, GAF may suspend, disable, or terminate your access to the App, and GAF may terminate this EULA.
Notice Regarding Dispute Resolution: This EULA contains provisions that govern Claims (as defined below) you and GAF have against each other and how they will be resolved (see Sections 9 (Disclaimer of Warranty), 10 (Limitation of Liability), and 16 (Miscellaneous) below).
1. License. Subject to the terms and conditions of this EULA, GAF grants you a non-exclusive, non-transferable, limited license (without right of sublicense) during the term of this EULA to install and use one copy of the App on your personal mobile device (“Your Device”) solely in machine executable object code form and solely for your personal use in connection with your use of the Fan. GAF reserves any rights not expressly granted herein. GAF has no responsibility whatsoever to furnish any maintenance or support services with respect to the App.
2. Updates. GAF may, from time to time, provide or make available certain improvements, updates, upgrades, bug fixes, patches, or other modifications to the App (“Updates”). GAF may develop and provide Updates in its sole discretion and you agree that GAF has no obligation to develop any Updates. Updates may be automatically installed without providing you any additional notice or receiving any additional consent. You agree to the automatic installation of all Updates. You acknowledge that you may be required to install Updates to use the App, and you will promptly install any Updates GAF provides. The App (including any Updates) may: (a) cause Your Device to automatically communicate with our and our service providers’ servers to deliver the functionality of the App, including 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 the Privacy Policy. Once provided to you by GAF, all Updates will be deemed to be included within the meaning of the “App” as defined in this EULA and are subject to all terms and conditions herein. If you do not agree to the installation of any Update, please delete the App.
3. Restrictions. Any use of the App not specifically authorized under this EULA is prohibited. You may not assign this EULA or any of the rights or licenses granted under this EULA or sublicense, resell, rent, lease, lend, or otherwise transfer or make available the App to any person or entity, without GAF’s prior written consent in each instance, and any attempt to do so shall be void. You acknowledge that the App contains proprietary trade secrets of GAF and that the App is protected by intellectual property law (including that of the United States) and international treaty provisions. You may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the App without the prior written consent of GAF. You shall not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the App by any means whatsoever (including, but not limited to, bypassing or breaching any Security Measures (as defined below)), except to the extent the foregoing restriction is prohibited by applicable law. You may not use the App for the purposes of benchmarking or competitive analysis or for developing, using, or providing a competing software product or service. You will use the App only in a manner that complies with all applicable laws.
4. Ownership. The App is licensed, and not sold, to you under this EULA. You have no ownership rights in the App or in any related intellectual property rights. GAF retains all right, title, and interest in and to the App (including any changes, modifications, or corrections thereto). You will take all reasonable steps to protect the App from unauthorized copying or use.
5. Security Measures. The App may contain technological measures (the “Security Measures”) designed to prevent certain kinds of unauthorized or illegal use of the App. However, GAF cannot, and does not, guarantee that unauthorized third parties will not be able to defeat the Security Measures. You acknowledge and agree that GAF may also use the Security Measures and other lawful measures to verify your compliance with the terms of this EULA and enforce GAF’s rights hereunder, including, without limitation, GAF’s intellectual property rights in and to the App.
6. Third Party Materials. The App may include software, content, data, and other materials, including, without limitation, related documentation, that are owned by individuals or entities other than GAF, including, without limitation, software and materials licensed to GAF pursuant to “open source” or “free software” licenses (collectively, “Third-Party Materials”). Third-Party Materials may be provided to you on terms and conditions that are in addition to and/or different from those contained in this EULA, and your use of such Third-Party Materials are subject to such terms and conditions. To the extent GAF is required by an agreement governing such Third-Party Materials, GAF will make such Third-Party Materials available to you upon your written request to GAF in accordance with Section 16. For the sake of clarity, and without limiting anything else set forth herein, Sections 9 and 10 of this EULA apply to the Third-Party Materials portions of the App.
7. Eligibility. You hereby affirm that you have reached the age of majority in your jurisdiction of residence and that you will not grant access to the App to any individual under the age of majority in their jurisdiction of residence, as the App is not intended for individuals who have not reached such age. You further affirm 3 that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this EULA and to abide by and comply with them. If the affirmations in this Section 7 are not true, then you may not access or use the App.
8. Release and Indemnification. To the maximum extent permitted by law, you hereby release and discharge GAF, its affiliates and each provider of any portion of the App, and each of their respective officers, directors, shareholders, members, employees, agents, subcontractors, successors, and assigns (collectively, the “GAF Parties”) from, and agree that you shall waive and not assert any cause of action, complaint, allegation, assertion, claim, demand, audit, investigation, inquiry, proceeding, hearing, arbitration, lawsuit, or other action of any kind (each, a “Claim”) against any of the GAF Parties for, any damages arising directly or indirectly out of, related to, or in connection with (a) your access to and use of the App, including, without limitation, all decisions you make based on your access to and use of the App; (b) any and all activities that occur in the App under your account, including, without limitation, any loss that you may incur as a result of someone else using your passwords or your account, either with or without your knowledge; (c) Your Device; (d) your home network; and (e) Third-Party Materials and the acts and omission of the providers of any Third-Party Materials ((a) through (e) (inclusive), collectively, the “Release”). You shall immediately notify GAF of and indemnify and hold harmless the GAF Parties from and against any and all liabilities, damages, judgments, awards, settlement, costs, expenses, and other charges of any kind (including, but not limited to, reasonable fees and expenses of attorneys) suffered or incurred by any of the GAF Parties arising directly or indirectly out of, related to, or in connection with any Claim brought by you or any other party against any of the GAF Parties arising directly or indirectly out of, related to, or in connection with (i) any matter covered by the Release; and (ii) your breach of any provision of this EULA. The indemnity for expenses incurred by any GAF Party as set forth in this Section, includes, without limitation, litigation costs and expenses and reasonable attorneys’ fees as well as such costs, expenses and fees incurred by any of the GAF Parties in defending any claims by a third party, in pursuing claims against you and in establishing and enforcing its right to indemnification hereunder.
9. Disclaimer of Warranty. THE APP IS PROVIDED “AS IS” AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO YOUR USE, AND THE PERFORMANCE OF, THE APP IS WITH YOU. THE APP IS NOT INTENDED FOR USE WITH A FAN IN A COMMERCIAL ENVIRONMENT. THE FAN IS SUBJECT TO A SEPARATE WARRANTY, WHICH WARRANTY WILL NOT APPLY TO THE APP. SHOULD THE APP PROVE DEFECTIVE, NO GAF PARTY WILL HAVE ANY RESPONSIBILITY OR LIABILITY FOR THE SERVICING AND/OR REPAIR OF YOUR DEVICE, YOUR HOME NETWORK, OR THE APP. THE GAF PARTIES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND THIRD-PARTY MATERIALS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR USE OR PURPOSE. THE GAF PARTIES DO NOT WARRANT THAT THE APP OR THE THIRD-PARTY MATERIALS WILL MEET YOUR REQUIREMENTS IN ANY RESPECT, THAT THEIR OPERATION OR YOUR USE OF THEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT ERRORS IN THEM CAN OR WILL BE CORRECTED, THAT THEY WILL BE COMPATIBLE WITH YOUR HOME NETWORK OR YOUR DEVICE, OR THAT DATA AND CONTENT PRESENTED BY THEM OR OTHERWISE DERIVED FROM YOUR USE OF THEM APP OR CONTAINED WITHIN THEM WILL BE ACCURATE, COMPLETE, OR RELIABLE. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL DECISIONS YOU MAKE BASED ON YOUR ACCESS TO AND USE OF THE APP AND THE THIRD-PARTY MATERIALS, INCLUDING, WITHOUT, LIMITATION, ANY DATA OR CONTENT YOU HAVE ACCESS TO OR RECEIVE IN CONNECTION WITH THEM. INFORMATION TRANSMITTED OVER THE INTERNET OR STORED ON SYSTEMS REACHABLE FROM THE INTERNET IS INHERENTLY INSECURE, AND THE GAF PARTIES DO NOT MAKE ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE APP OR THIRD-PARTY MATERIALS OR THE DATA OR CONTENT TRANSMITTED TO OR BY THEM, WHETHER SUCH DATA OR CONTENT IS TRANSMITTED TO YOUR DEVICE OR HOME NETWORK, A FAN, OR OTHERWISE. THE GAF PARTIES DO NOT MAKE ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OR USABILITY OF ANY SECURITY MEASURE FOR THE APP OR THIRDPARTY MATERIALS OR THAT THEY WILL BE FREE FROM VIRUSES, HARMFUL CODE, OR ANY OTHER UNAUTHORIZED ACCESS, AND NO GAF PARTY WILL HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH ANY SUCH UNAUTHORIZED ACCESS. NO GAF PARTY SHALL HAVE RESPONSIBILITY OR LIABILITY FOR ANY LOSS CAUSED BY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RESULTING TO YOUR DEVICE OR HOME NETWORK. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT AND CONSIDERATION TO GAF TO GRANT THE RIGHTS AND LICENSES CONTAINED IN THIS EULA AND TO PROVIDE YOU WITH ACCESS TO AND USE OF THE APP AND THIRD-PARTY MATERIALS.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN ADDITION TO THE RELEASE, WARRANTY DISCLAIMER, AND OTHER RELEASES AND DISCLAIMERS IN THIS EULA, IN NO EVENT SHALL (A) ANY GAF PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE APP, THIS EULA, OR OTHERWISE, EVEN IF A GAF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL AGGREGATE LIABILITY OF ALL GAF PARTIES FOR ANY NON-EXCLUDED DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE APP, THIS EULA, OR OTHERWISE EXCEED $100. WITHOUT LIMITING THE FOREGOING, NO GAF PARTY WILL HAVE ANY LIABILITY OF ANY KIND IN CONNECTION WITH THE THIRD-PARTY MATERIALS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY OF ANY KIND AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
11. Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers, limitations, and exclusions may not apply to you. To the extent that a GAF Party may not, as a matter of applicable law, disclaim any warranty or limit or exclude any liability, the scope and duration of such warranty and the extent of the GAF Party’s liability shall be the minimum permitted under such applicable law.
12. Modifications and Discontinuations. GAF reserves the right, at any time, to modify or discontinue the App, or any part or functionality thereof, with or without notice. You agree that GAF will not be liable to you or any third party for any such modification or discontinuation.
13. Term; Termination. This EULA shall continue until it is terminated as provided herein. You may terminate this EULA at any time by destroying all copies of the App in your possession or under your control. GAF may immediately terminate this EULA, and/or your access to and use of the App, or any portion thereof, at any time and for any reason, with or without cause, with or without notice, and without cost or penalty of any kind. This EULA will automatically terminate upon your violation of any of the terms of this EULA. Upon termination of this EULA, all rights and licenses granted hereunder to you shall immediately terminate, and you must cease all use of the App. However, all other provisions of this EULA shall survive such termination.
14. Export Laws. You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin. You will not export or re-export the App in any form in violation of the laws of the United States or any foreign jurisdiction. You represent and warrant that: (a) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
15. U.S. Government End Users. The App is a “Commercial Item,” as that term is defined at 48 C.F.R §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, and the App is being licensed to U.S. Government end users (a) only as a “Commercial Item,” and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions herein.
16. Miscellaneous. All notices, requests and other communication given by you to GAF hereunder must be sent in writing by email to LLBP-EULA@gaf.com or LL Building Products Inc., a subsidiary of GAF, 295 McKoy Rd., Burgaw, NC 28425. This EULA is the entire agreement between you and GAF with respect to, and supersedes any previous oral or written communications or documents (including, without limitation, if you are obtaining an update, any agreement that may have been included with an earlier version of the App) concerning the subject matter of this EULA. Without limiting anything in Sections 9 or 10, your purchase of the Fan is governed by the limited warranty provided with the Fan and not this EULA. This EULA does not afford you any greater rights with respect to the Fan than are set forth in the limited warranty provided with the Fan, and any breach or violation by GAF of the terms of this EULA shall not be deemed to be a violation or breach of the terms of the limited warranty provided with the Fan. GAF’s termination of this EULA for any reason or GAF’s modification or discontinuance of the App, or any part or functionality thereof, shall not impact your rights under the limited warranty provided with the Fan. This EULA is governed by the laws of the State of New Jersey, USA without regard to conflicts of laws principles. You agree that any dispute arising from or relating to this EULA shall be brought exclusively in a court of competent jurisdiction, federal or state, located within Morris County, New Jersey, and in no other jurisdiction, and you hereby consent to personal jurisdiction and venue in, and agree to service of process issued or authorized, by any such court. This EULA will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. In the event any provision of this EULA is found to be invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this EULA will remain in full force and effect. Failure by GAF to prosecute any right with respect to a default hereunder will not constitute a waiver by GAF or the right to enforce rights with respect to the same or any other breach. All GAF Parties are intended third-party beneficiaries of this EULA and, upon your acceptance of this EULA, all GAF Parties will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary. Subject to the preceding sentence and Section 17, this EULA is between you and GAF and there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this EULA. Any heading, caption, or section title contained in this EULA is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
17. End-User Terms Required by Apple. You acknowledge and agree that (a) this EULA is concluded between you and GAF, and not Apple, Inc. (“Apple”); (b) GAF, and not Apple, is solely responsible for the App; (c) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the App; (d) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for App; (e) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App; (f) Apple is not responsible for any claims that you have arising out of your use of the App; (g) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third party claim that the App infringes that third party’s intellectual property rights; and (h) Apple and its subsidiaries are third party beneficiaries of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary. If you have any questions, complaints, or claims with respect to the App, please contact LLBP-EULA@gaf.com or LL Building Products Inc., a subsidiary of GAF, 295 McKoy Rd., Burgaw, NC 28425, (800) 211-9612.
This Master Flow QuickConnect End User License Agreement (this “EULA”) is a legal agreement governing your access to and use of the Master Flow QuickConnect mobile application and all data and content that is accessed or utilized by such mobile application (collectively, the “App”) in connection with the operation and control of the Master Flow Power Attic Vent you connect to the App (the “Fan”). The parties to this EULA are you and GAF. You can use the Fan without the App. Accepting this EULA is not required to use the Fan.
Your access to and use of the App is subject to this EULA and GAF’s privacy policy currently located at https://gaf.com/en-us/about-us/privacy-legal/privacy-policy (the “Privacy Policy”). It is important that you carefully read and understand the terms and conditions of this EULA and the Privacy Policy. By clicking the “I Accept” button, or using any other mechanism to accept this EULA, or by accessing or using the App, effective immediately you are bound by and agree to comply with this EULA and you consent to GAF’s handling of information as described in the Privacy Policy. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA AND CONSENT TO GAF’S HANDLING OF INFORMATION AS DESCRIBED IN THE PRIVACY POLICY, YOU ARE NOT AUTHORIZED TO CLICK THE “I Accept” BUTTON, OR OTHER MECHANISM, OR TO ACCESS OR USE THE APP.
From time to time, GAF may update this EULA by posting the updated version to https://gaf.com/fanEULA (or another location specified there) and updating the “Last updated” date at the top of the page containing the revised text. Unless you reject the update by deleting the App and emailing GAF at LLBP-EULA@gaf.com with a notice of termination of this EULA prior to any of the following, you will be deemed to accept the changes and they will take effect at the earlier of: (a) 12:00 p.m. Eastern time on the 15th day after GAF posts it or notifies you of such changes, such as via email; (b) your first ever use of a new or changed feature of the App that is subject to an updated portion of this EULA; or (c) your acceptance of the updated EULA via a click-through process or some other method that GAF specifies. You agree to review this EULA periodically to ensure that you are familiar with the most recent version. If you reject an update to this EULA, GAF may suspend, disable, or terminate your access to the App, and GAF may terminate this EULA.
Notice Regarding Dispute Resolution: This EULA contains provisions that govern Claims (as defined below) you and GAF have against each other and how they will be resolved (see Sections 9 (Disclaimer of Warranty), 10 (Limitation of Liability), and 16 (Miscellaneous) below).
1. License. Subject to the terms and conditions of this EULA, GAF grants you a non-exclusive, non-transferable, limited license (without right of sublicense) during the term of this EULA to install and use one copy of the App on your personal mobile device (“Your Device”) solely in machine executable object code form and solely for your personal use in connection with your use of the Fan. GAF reserves any rights not expressly granted herein. GAF has no responsibility whatsoever to furnish any maintenance or support services with respect to the App.
2. Updates. GAF may, from time to time, provide or make available certain improvements, updates, upgrades, bug fixes, patches, or other modifications to the App (“Updates”). GAF may develop and provide Updates in its sole discretion and you agree that GAF has no obligation to develop any Updates. Updates may be automatically installed without providing you any additional notice or receiving any additional consent. You agree to the automatic installation of all Updates. You acknowledge that you may be required to install Updates to use the App, and you will promptly install any Updates GAF provides. The App (including any Updates) may: (a) cause Your Device to automatically communicate with our and our service providers’ servers to deliver the functionality of the App, including 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 the Privacy Policy. Once provided to you by GAF, all Updates will be deemed to be included within the meaning of the “App” as defined in this EULA and are subject to all terms and conditions herein. If you do not agree to the installation of any Update, please delete the App.
3. Restrictions. Any use of the App not specifically authorized under this EULA is prohibited. You may not assign this EULA or any of the rights or licenses granted under this EULA or sublicense, resell, rent, lease, lend, or otherwise transfer or make available the App to any person or entity, without GAF’s prior written consent in each instance, and any attempt to do so shall be void. You acknowledge that the App contains proprietary trade secrets of GAF and that the App is protected by intellectual property law (including that of the United States) and international treaty provisions. You may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the App without the prior written consent of GAF. You shall not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the App by any means whatsoever (including, but not limited to, bypassing or breaching any Security Measures (as defined below)), except to the extent the foregoing restriction is prohibited by applicable law. You may not use the App for the purposes of benchmarking or competitive analysis or for developing, using, or providing a competing software product or service. You will use the App only in a manner that complies with all applicable laws.
4. Ownership. The App is licensed, and not sold, to you under this EULA. You have no ownership rights in the App or in any related intellectual property rights. GAF retains all right, title, and interest in and to the App (including any changes, modifications, or corrections thereto). You will take all reasonable steps to protect the App from unauthorized copying or use.
5. Security Measures. The App may contain technological measures (the “Security Measures”) designed to prevent certain kinds of unauthorized or illegal use of the App. However, GAF cannot, and does not, guarantee that unauthorized third parties will not be able to defeat the Security Measures. You acknowledge and agree that GAF may also use the Security Measures and other lawful measures to verify your compliance with the terms of this EULA and enforce GAF’s rights hereunder, including, without limitation, GAF’s intellectual property rights in and to the App.
6. Third Party Materials. The App may include software, content, data, and other materials, including, without limitation, related documentation, that are owned by individuals or entities other than GAF, including, without limitation, software and materials licensed to GAF pursuant to “open source” or “free software” licenses (collectively, “Third-Party Materials”). Third-Party Materials may be provided to you on terms and conditions that are in addition to and/or different from those contained in this EULA, and your use of such Third-Party Materials are subject to such terms and conditions. To the extent GAF is required by an agreement governing such Third-Party Materials, GAF will make such Third-Party Materials available to you upon your written request to GAF in accordance with Section 16. For the sake of clarity, and without limiting anything else set forth herein, Sections 9 and 10 of this EULA apply to the Third-Party Materials portions of the App.
7. Eligibility. You hereby affirm that you have reached the age of majority in your jurisdiction of residence and that you will not grant access to the App to any individual under the age of majority in their jurisdiction of residence, as the App is not intended for individuals who have not reached such age. You further affirm 3 that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this EULA and to abide by and comply with them. If the affirmations in this Section 7 are not true, then you may not access or use the App.
8. Release and Indemnification. To the maximum extent permitted by law, you hereby release and discharge GAF, its affiliates and each provider of any portion of the App, and each of their respective officers, directors, shareholders, members, employees, agents, subcontractors, successors, and assigns (collectively, the “GAF Parties”) from, and agree that you shall waive and not assert any cause of action, complaint, allegation, assertion, claim, demand, audit, investigation, inquiry, proceeding, hearing, arbitration, lawsuit, or other action of any kind (each, a “Claim”) against any of the GAF Parties for, any damages arising directly or indirectly out of, related to, or in connection with (a) your access to and use of the App, including, without limitation, all decisions you make based on your access to and use of the App; (b) any and all activities that occur in the App under your account, including, without limitation, any loss that you may incur as a result of someone else using your passwords or your account, either with or without your knowledge; (c) Your Device; (d) your home network; and (e) Third-Party Materials and the acts and omission of the providers of any Third-Party Materials ((a) through (e) (inclusive), collectively, the “Release”). You shall immediately notify GAF of and indemnify and hold harmless the GAF Parties from and against any and all liabilities, damages, judgments, awards, settlement, costs, expenses, and other charges of any kind (including, but not limited to, reasonable fees and expenses of attorneys) suffered or incurred by any of the GAF Parties arising directly or indirectly out of, related to, or in connection with any Claim brought by you or any other party against any of the GAF Parties arising directly or indirectly out of, related to, or in connection with (i) any matter covered by the Release; and (ii) your breach of any provision of this EULA. The indemnity for expenses incurred by any GAF Party as set forth in this Section, includes, without limitation, litigation costs and expenses and reasonable attorneys’ fees as well as such costs, expenses and fees incurred by any of the GAF Parties in defending any claims by a third party, in pursuing claims against you and in establishing and enforcing its right to indemnification hereunder.
9. Disclaimer of Warranty. THE APP IS PROVIDED “AS IS” AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO YOUR USE, AND THE PERFORMANCE OF, THE APP IS WITH YOU. THE APP IS NOT INTENDED FOR USE WITH A FAN IN A COMMERCIAL ENVIRONMENT. THE FAN IS SUBJECT TO A SEPARATE WARRANTY, WHICH WARRANTY WILL NOT APPLY TO THE APP. SHOULD THE APP PROVE DEFECTIVE, NO GAF PARTY WILL HAVE ANY RESPONSIBILITY OR LIABILITY FOR THE SERVICING AND/OR REPAIR OF YOUR DEVICE, YOUR HOME NETWORK, OR THE APP. THE GAF PARTIES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND THIRD-PARTY MATERIALS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR USE OR PURPOSE. THE GAF PARTIES DO NOT WARRANT THAT THE APP OR THE THIRD-PARTY MATERIALS WILL MEET YOUR REQUIREMENTS IN ANY RESPECT, THAT THEIR OPERATION OR YOUR USE OF THEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT ERRORS IN THEM CAN OR WILL BE CORRECTED, THAT THEY WILL BE COMPATIBLE WITH YOUR HOME NETWORK OR YOUR DEVICE, OR THAT DATA AND CONTENT PRESENTED BY THEM OR OTHERWISE DERIVED FROM YOUR USE OF THEM APP OR CONTAINED WITHIN THEM WILL BE ACCURATE, COMPLETE, OR RELIABLE. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL DECISIONS YOU MAKE BASED ON YOUR ACCESS TO AND USE OF THE APP AND THE THIRD-PARTY MATERIALS, INCLUDING, WITHOUT, LIMITATION, ANY DATA OR CONTENT YOU HAVE ACCESS TO OR RECEIVE IN CONNECTION WITH THEM. INFORMATION TRANSMITTED OVER THE INTERNET OR STORED ON SYSTEMS REACHABLE FROM THE INTERNET IS INHERENTLY INSECURE, AND THE GAF PARTIES DO NOT MAKE ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE APP OR THIRD-PARTY MATERIALS OR THE DATA OR CONTENT TRANSMITTED TO OR BY THEM, WHETHER SUCH DATA OR CONTENT IS TRANSMITTED TO YOUR DEVICE OR HOME NETWORK, A FAN, OR OTHERWISE. THE GAF PARTIES DO NOT MAKE ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OR USABILITY OF ANY SECURITY MEASURE FOR THE APP OR THIRDPARTY MATERIALS OR THAT THEY WILL BE FREE FROM VIRUSES, HARMFUL CODE, OR ANY OTHER UNAUTHORIZED ACCESS, AND NO GAF PARTY WILL HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH ANY SUCH UNAUTHORIZED ACCESS. NO GAF PARTY SHALL HAVE RESPONSIBILITY OR LIABILITY FOR ANY LOSS CAUSED BY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RESULTING TO YOUR DEVICE OR HOME NETWORK. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT AND CONSIDERATION TO GAF TO GRANT THE RIGHTS AND LICENSES CONTAINED IN THIS EULA AND TO PROVIDE YOU WITH ACCESS TO AND USE OF THE APP AND THIRD-PARTY MATERIALS.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN ADDITION TO THE RELEASE, WARRANTY DISCLAIMER, AND OTHER RELEASES AND DISCLAIMERS IN THIS EULA, IN NO EVENT SHALL (A) ANY GAF PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE APP, THIS EULA, OR OTHERWISE, EVEN IF A GAF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL AGGREGATE LIABILITY OF ALL GAF PARTIES FOR ANY NON-EXCLUDED DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE APP, THIS EULA, OR OTHERWISE EXCEED $100. WITHOUT LIMITING THE FOREGOING, NO GAF PARTY WILL HAVE ANY LIABILITY OF ANY KIND IN CONNECTION WITH THE THIRD-PARTY MATERIALS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY OF ANY KIND AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
11. Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers, limitations, and exclusions may not apply to you. To the extent that a GAF Party may not, as a matter of applicable law, disclaim any warranty or limit or exclude any liability, the scope and duration of such warranty and the extent of the GAF Party’s liability shall be the minimum permitted under such applicable law.
12. Modifications and Discontinuations. GAF reserves the right, at any time, to modify or discontinue the App, or any part or functionality thereof, with or without notice. You agree that GAF will not be liable to you or any third party for any such modification or discontinuation.
13. Term; Termination. This EULA shall continue until it is terminated as provided herein. You may terminate this EULA at any time by destroying all copies of the App in your possession or under your control. GAF may immediately terminate this EULA, and/or your access to and use of the App, or any portion thereof, at any time and for any reason, with or without cause, with or without notice, and without cost or penalty of any kind. This EULA will automatically terminate upon your violation of any of the terms of this EULA. Upon termination of this EULA, all rights and licenses granted hereunder to you shall immediately terminate, and you must cease all use of the App. However, all other provisions of this EULA shall survive such termination.
14. Export Laws. You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin. You will not export or re-export the App in any form in violation of the laws of the United States or any foreign jurisdiction. You represent and warrant that: (a) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
15. U.S. Government End Users. The App is a “Commercial Item,” as that term is defined at 48 C.F.R §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, and the App is being licensed to U.S. Government end users (a) only as a “Commercial Item,” and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions herein.
16. Miscellaneous. All notices, requests and other communication given by you to GAF hereunder must be sent in writing by email to LLBP-EULA@gaf.com or LL Building Products Inc., a subsidiary of GAF, 295 McKoy Rd., Burgaw, NC 28425. This EULA is the entire agreement between you and GAF with respect to, and supersedes any previous oral or written communications or documents (including, without limitation, if you are obtaining an update, any agreement that may have been included with an earlier version of the App) concerning the subject matter of this EULA. Without limiting anything in Sections 9 or 10, your purchase of the Fan is governed by the limited warranty provided with the Fan and not this EULA. This EULA does not afford you any greater rights with respect to the Fan than are set forth in the limited warranty provided with the Fan, and any breach or violation by GAF of the terms of this EULA shall not be deemed to be a violation or breach of the terms of the limited warranty provided with the Fan. GAF’s termination of this EULA for any reason or GAF’s modification or discontinuance of the App, or any part or functionality thereof, shall not impact your rights under the limited warranty provided with the Fan. This EULA is governed by the laws of the State of New Jersey, USA without regard to conflicts of laws principles. You agree that any dispute arising from or relating to this EULA shall be brought exclusively in a court of competent jurisdiction, federal or state, located within Morris County, New Jersey, and in no other jurisdiction, and you hereby consent to personal jurisdiction and venue in, and agree to service of process issued or authorized, by any such court. This EULA will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. In the event any provision of this EULA is found to be invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this EULA will remain in full force and effect. Failure by GAF to prosecute any right with respect to a default hereunder will not constitute a waiver by GAF or the right to enforce rights with respect to the same or any other breach. All GAF Parties are intended third-party beneficiaries of this EULA and, upon your acceptance of this EULA, all GAF Parties will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary. Subject to the preceding sentence and Section 17, this EULA is between you and GAF and there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this EULA. Any heading, caption, or section title contained in this EULA is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
17. End-User Terms Required by Apple. You acknowledge and agree that (a) this EULA is concluded between you and GAF, and not Apple, Inc. (“Apple”); (b) GAF, and not Apple, is solely responsible for the App; (c) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the App; (d) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for App; (e) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App; (f) Apple is not responsible for any claims that you have arising out of your use of the App; (g) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third party claim that the App infringes that third party’s intellectual property rights; and (h) Apple and its subsidiaries are third party beneficiaries of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary. If you have any questions, complaints, or claims with respect to the App, please contact LLBP-EULA@gaf.com or LL Building Products Inc., a subsidiary of GAF, 295 McKoy Rd., Burgaw, NC 28425, (800) 211-9612.