Last modified: April 25, 2016
Gauge is a division of Test.com, Inc., a corporation organized under the laws of the state of Ohio. All references herein to “Gauge” shall mean Test.com, Inc. These Terms of Service shall govern the use of Gauge’s website. In the event of a conflict between these Terms of Service and a Service Provider Agreement between Gauge and a Client, the terms and provisions of the Service Provider Agreement shall be controlling.
Clients are granted only a limited, non-exclusive, non-transferable, non-assignable license to access and use Gauge as provided in the Service Provider Agreement between Gauge and the Client. Gauge shall retain full title to, and Client shall receive no interest of any kind in (except the right to access and use under Terms of Service) the following (collectively, “Gauge Proprietary Information”):
- Gauge, including all software code, documentation, training manuals and materials, and proprietary methods, processes, techniques, know-how and information of any kind related to the implementation or delivery of the Service to Client; and
- Related Service Offering, including all software code, documentation, training manuals and materials, and proprietary methods, processes, techniques, know-how and information of any kind related to the implementation or delivery of Related Service Offerings to Client.
For Clients using a free trial of Gauge (Clients not having entered into a Service Provider Agreement), the Client’s use of the Gauge website is terminable at will by either the Client or Gauge. Client expressly understands that if it decides to grant access to Client Services to non-employees, Client shall bear full legal responsibility for such non-employees’ use of Client Services. For purposes of Client’s liability and obligations, all non-employees to whom Client grants access to Client Services shall be treated as employees of Client.
Gauge and Client recognize that each will be in possession of information the other party reasonably believes to be confidential or proprietary, including without limitation, Gauge, and any test information loaded by Client onto Gauge. As it relates to the other party’s confidential or proprietary information, Gauge and Client agree that they will (a) disclose the other party’s confidential or proprietary information solely to authorized employees and only to the extent necessary for them to perform the obligations herein ; (b) protect such confidential or proprietary information against disclosure with the same degree of care it protects its own confidential or proprietary information (although in no case shall the party exercise less than reasonable care); and (c) promptly notify the other party of unauthorized use, disclosure, theft, or other loss of confidential or proprietary information of which it becomes aware Gauge’s or Client’s confidential or proprietary information may be disclosed to the extent: (a) it becomes reasonably available in the public domain (through no disclosure of the other party); (b) is required by a court of competent jurisdiction or other government department, agency or tribunal, provided the party whose information is required to be disclosed is notified of such requirement and is provided an opportunity to resist such disclosure; or (c) with the prior written consent of a representative of the other party authorized to bind such party.
Users are granted only a limited, non-exclusive, non-transferable, non-assignable license to access and use Gauge as permitted by Gauge and the applicable Client, in the discretion of each of them.
Users agree to make only authorized use of Gauge and to not to engage in any unauthorized, illegal, and/or malicious use whatsoever.
Warranty and Liability Limitations:
EXCEPT AS SET FORTH SPECIFICALLY IN A SERVICE PROVIDER AGREEMENT, GAUGE MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL GAUGE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTIAL, PUNITIVE OR OTHER EXEMPLARY DAMAGES, LOSSES, EXPENSES OR FEES, INCLUDING WITHOUT LIMITATION, LOST TIME, CUSTOMERS, GOODWILL, PROFITS OR ATTORNEY’S FEES, WHETHER OR NOT SUCH DAMAGES, LOSSES OR EXPENSES OR FEES ARE BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHICH MAY ARISE HEREUNDER OR FROM THE USE OF THIS WEBSITE, EVEN IF GAUGE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR FEES.
UNLESS DUE TO WILLFUL TORTIOUS MISCONDUCT OR GROSS NEGLIGENCE, GAUGE AND ITS AFFILIATES SHALL HAVE NO TORT, CONTRACT OR ANY OTHER LIABILITY TO CLIENT AND/OR ANY THIRD PARTY, INCLUDING USERS, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICE PROVIDER AGREEMENT. GAUGE AND ITS AFFILIATES SHALL UNDER NO CIRCUMSTANCE BE LIABLE TO CLIENT AND/OR ANY THIRD PARTY, INCLUDING USERS, FOR ANY LOST PROFITS OR LOST OPPORTUNITY, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF GAUGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
All Clients and Users of Gauge represent and warrant that they shall not infringe upon Patent 6,513,042 issued to Test.com, Inc., or otherwise infringe upon, violate, or misappropriate the intellectual property rights of Gauge.
Use of the Gauge website by Clients and Users shall be governed by and construed in accordance with the laws of the State of Ohio without regard to principles of conflict of law. The state and federal courts located in Ohio will have exclusive jurisdiction with respect to any dispute regarding use of Gauge’s website.