General Terms and Conditions of Subscription.
The use of the Gauge Service without a current, valid subscription is prohibited. Any on-site training or support requested by you may involve additional charges. All software items delivered to you hereunder are licensed and not sold. The provisions of any relevant license agreement included with the software shall also govern your use of any software covered by this Agreement or used with the Gauge Service.
Gauge reserves the right to access all data collected, transmitted and stored under the Gauge Service to track the use of and to make modifications and upgrades to the Gauge and for Gauge’s own commercial purposes without your prior written consent.
Term and Termination.
The initial term of this agreement is for one (1) year. Unless either party provides written notice to the other of its intent not to have the agreement renew, after the initial term, this agreement shall automatically renew on a month-to-month basis (a “Renewal Term”). If you cancel the Gauge Service, in whole or in part, before the end of the initial term, you must pay all remaining monthly payments due until the end of the initial term and are not entitled to any refund. During a renewal term, you or Gauge may cancel the service at any time by notifying the other party at least one (1) month prior to the end of the current billing cycle and cancellation will be effective at the end of the next full billing cycle and you must pay all monthly fees through the end of such billing cycle. Charges for the Gauge service are not refundable under any circumstances. Upon termination of Gauge Service for any reason, you will discontinue use of the Gauge Service and either return or certify as destroyed all copies of software, and related materials and documentation obtained through the Gauge Service.
If you fail to pay any amounts due under this agreement or are otherwise in breach of any provision hereof Gauge may, in its sole discretion, without notice, terminate or suspend the Gauge Service and this agreement immediately and receive from you all amounts due under this agreement plus all costs of collection and/or pursue any other remedy at law or in equity.
Risk of Loss.
You are responsible for any damage to and risk of loss for the hardware related to the Gauge Service, from any cause, including vehicle failure, theft, fire, collision, tampering, and vandalism. Despite any such damage or loss, you shall not be excused from performance under this agreement.
Interruption of Service.
Gauge will use reasonable commercial efforts to maintain the service in viable condition. Interruptions in service may occur from time to time for a variety of reasons, and therefore the availability of the Gauge Service or any data from the Gauge Service is not guaranteed.
Gauge shall not be held liable by you or any third party for any loss or damage arising from the Gauge Service, or its delay or interruption, transmission errors, defects or any other causes, including, but not limited to, interruption caused by the underlying carrier. Gauge does not assume and shall not have any liability for events beyond Gauge’s control or the control of Gauge subcontractors, or licensors, including, but not limited to, acts of God, acts of terrorism (foreign or domestic), acts of any governmental entity, acts of public enemy, acts of war, civil disturbances, court order, labor strikes or weather conditions. Periods of discontinuous Outage may not be accumulated in determining if an Outage has continued for at least forty-eight (48) hours. In order to receive such credit, Customer must submit a written request to Gauge, stating the date and location of the Outrage, the account(s) affected, and such other information as Gauge may reasonably require. Such notice must be received by Gauge within ten (10) business days following the last date of the period of Outage. Except as provided herein, Gauge shall incur no liability for Outages.
Security and Integrity of Information
Gauge employs information security techniques to appropriately and reasonably protect confidential information from unauthorized access by users inside and outside the company. Access to customer information is limited to those employees who have a business need for that information.
Gauge employs generally accepted information security techniques such as firewalls, access control procedures and cryptography to appropriately protect confidential information from unauthorized access.
Cookies are used by our website to keep track of and administer user status, preferences, business information and other information provided by a user, for security purposes, to better understand our client’s needs while keeping their anonymity. Other than cookies used in connection with registered users of the Gauge Site, information collected by cookies is not used by Gauge to identify an individual. Gauge’s cookies are placed every time a user logs in and are available for that session only. Cookies used to transfer information from one application to another are available only in the session of that transfer. Other cookies may be stored indefinitely on user’s hard drives. Refusal of cookies will not interfere with the ability to interact with Gauge Site, users will need to accept cookies in order to use certain functionality of the internal website. Gauge makes no guarantees, representations or warranties (express or implied) concerning the data from the Gauge Service, including, but not limited to its accuracy or value. There is no guarantee of successful reception of the data. You accept subscription service on as As-IS and AS AVAILABLE basis. Gauge shall not be responsible to you or any third party for lost revenues, lost profits, lost data, or other special, incidental, direct, indirect or consequential damages or loss or other expense directly or indirectly arising out of your use of the Gauge Service or the data generated by the Gauge Service, even if Gauge has been advised of such damages. You have not relied on and are NOT entitled to the benefits of any representations, promises, descriptions of services, or other statement not specifically set forth in this Agreement. This is a contract for Gauge Service, not a contract for goods and that, accordingly, the Uniform Commercial Code (or any similar statutory scheme) does not apply. Gauge shall bear no liability for problems caused by alterations made by you, problems with your computer hardware, operating systems, or operating characteristics, or for problems in the interaction of the hardware or software with non-Gauge software components. Gauge’ entire liability and your exclusive remedy for breach of this Agreement shall be refund of one month's subscription rate. You have no contractual relationship with the underlying wireless service carrier and you are not a third party beneficiary of any agreement between Gauge and the underlying carrier. You understand and agree that the underlying carrier shall have no legal, equitable, or other liability of any kind to you. In any event, regardless of the form of the action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, your exclusive remedy for claims arising in any way in connection with this agreement, for any cause whatsoever, including but not limited to any failure or disruption of Gauge Service provided hereunder, is limited to payment of damages in an amount not to exceed the amount paid by customer for the Gauge Service during the 2 month period preceding the date the claim arose.
You understand and agree that Gauge and the underlying carrier cannot guarantee the security of wireless transmissions, and will not be liable for any lack of security relating to the use of the Gauge Service. You assume all risk of use of the Gauge Service, including but not limited to, traffic accidents while using the service. The Gauge Service is not guaranteed against third party access, including eavesdroppers or interceptors or the transmission of viruses or other harmful components. Gauge shall not be liable to you or any third party for lack of privacy or security.
You shall hold harmless Gauge from and against any loss, liability, damage, expense (including attorney’s fees) or claims of third parties resulting from any use or misuse of the Gauge Service by you or any third party using the Gauge Service through you and from your breach of any of the terms of this Agreement.
You shall indemnify and hold harmless the underlying wireless service carrier and its officers, employees, and agents against any and all claims, including, without limitation, claims for libel, slander, or any property damage, personal injury or death, arising in any way, directly or indirectly, in connection with this agreement or the use, failure to use, or inability to use the Gauge Service except where the claims result from the underlying carrier’s gross negligence or willful misconduct. This indemnity shall survive the termination of the agreement.
You have no proprietary right in any number assigned to you and understand that any such number can be changed from time to time.
You may not transfer or assign any of its rights or obligations under this Agreement in whole or in part without the prior written consent of Gauge. This Agreement is severable and if any non-material provision is held to be invalid or unenforceable, the remaining provisions remain binding. The failure of either party to exercise any right herein shall not be deemed a waiver to exercise such right (or any other right) in the future. Each remedy is distinct and cumulative to all other rights or remedies, and may be exercised concurrently, independently, or successively, in any order. You are an independent contractor with entire control and operation of your business subject to the terms hereof. No agency, employment, franchise, partnership or other special relationship is created or implied by the terms of this Agreement. All pricing information, trade secrets or proprietary information of Gauge which is disclosed to you under this Agreement shall be kept confidential by you and shall not be disclosed to third party. This Agreement, its performance, and all rights and obligations of the parties, are governed by Indiana law (excluding conflicts of laws). Any dispute arising under, out of, or in any way related to this Agreement shall be exclusively resolved by binding arbitration after written demand from one party to the other pursuant to the rules and regulations of the American Arbitration Association governing commercial transactions. The arbitration proceeding shall be conducted in Indianapolis, Indiana within 90 days of any demand for arbitration. Each party will pay one-half of the costs of the arbitration. Any arbitration decision or award shall be final and not subject to appeal. Neither party shall commence litigation against one another with respect to any dispute subject to arbitration hereunder, except as necessary to enforce this provision or an arbitrator’s decision.
You agree that regardless of any statue or law to the contrary, any claim or cause of action arising out of or related to use of the Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Warranty Coverage Policy
Gauge’ equipment is guaranteed against defective material and workmanship under normal use and application for a period of twelve (12) months from the date of purchase. During the Warranty period, Gauge will replace the product at no additional charge. Replacement products will be furnished on an exchange basis and will be new. This warranty does not include replacement of damaged product resulting from accident, disaster, misuse, abuse, or modification of the product.
Labor and travel expense incurred for in-field removal and replacement of components are not covered under this warranty.
The purchaser's sole remedy shall be replacement as provided above. In no event shall Gauge be liable for any damages or other claim including any claim for lost profits, lost savings, or other incidental or consequential damages arising out of the use of or inability to use the product even if Gauge has been advised of the possibility of such damages.
There are no warranties which extend beyond the description on the face hereof. Seller disclaims any implied warranty or merchantability or fitness for any particular use or purpose.
Any notice hereunder shall be in writing, shall be sent by certified mail or reputable overnight courier and shall be deemed to have been received and be effective on the day delivered to you at your main business address or to Gauge at the following address:
5625 North Post Rd.
Indianapolis, IN 46216