[Gage Score] Mobile Application End User License Agreement

This [Gage Score] Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you” or “your”) and Gage, LLC (“Company”). This Agreement governs your use of the Gage (including all software applications, together with any software code, scripts, interfaces, graphics, displays, text, documentation and other components); and (ii) any updates, modifications or enhancements thereto, the “Application”). The Application is licensed, not sold, to you.

BY  [CLICKING THE “AGREE” BUTTON/[[DOWNLOADING/INSTALLING/USING]  THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C)ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS LICENSE, DO NOT DOWNLOAD THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

YOU ACKNOWLEDGE AND UNDERSTAND THAT THE USE OF THE APPLICATION IS AT YOUR OWN RISK. IN CONSIDERATION OF THE COMPANY’S PROVISION OF, AND YOUR ACCESS TO AND USE OF, THE APPLICATION, YOU AGREE TO RELEASE AND WAIVE ANY AND ALL CAUSES OF ACTION, LIABILITIES, DAMAGES, CLAIMS, AND DEMANDS, OF EVERY KIND AND NATURE WHATSOEVER, WHICH MAY ARISE AGAINST COMPANY IN CONNECTION WITH OR RELATED TO YOUR USE OF THE APPLICATION.

  1. [Gage Score] Gage Application. The Application is intended to allow End User to collect, store, display and transmit personal information, including personal work history information, concerning End User (“Credentials”). Upon independent confirmation by Company, or its authorized agents, of your Credentials, you will receive a “Gage Score” based upon various metrics established by Company. Notwithstanding anything in this Agreement to the contrary, your Gage Score is the sole property of Company.

  2. License Grant. Subject to the terms of this Agreement, Company grants End User a limited, non-exclusive, and nontransferable license to download, install, and use the Application for your personal, non-commercial use (“Mobile Device”) strictly in accordance with the Application’s documentation

  3. Account. In order to access or use the Application, you must register and create an account (“Account”) with Company. Information gathered through the registration process and any other information related to your Account will be subject to this Agreement as well as to our  You represent and warrant that all information provided by you when creating your Account is true, accurate and complete and that you will maintain, at all times, true, accurate and complete information related to your Account. Information related to your Account should be maintained by you in a confidential manner, as you are solely responsible for the usage of your Account by any third parties with respect to the Application. It is your responsibility to advise us if you are aware of any unauthorized access to your Account or if your Account information has been made available by you to third-parties in a manner that may result in unauthorized usage of the Account. In our sole and absolute discretion, we may terminate your Account for any reason (including for reasons related to unlawful or unauthorized usage), and we are under no obligation to retain a record of your Account or any data or information that you may have stored by means of the Account.

  4. License Restrictions. Licensee shall not:

    (a)      copy the Application, except as expressly permitted by this license;

    (b)      modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

    (c)      reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

    (d)      remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

    (e)     rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or

    (f)      remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.

  5.  Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

  6. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application will provide you with opportunities to share personal and health-related information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

    You acknowledge and understand that you control, in your sole discretion, the use of the
    Application and the display and transmission of your Credentials. You voluntarily assume full
    responsibility for any risks of loss or damage that may be sustained by you, or any loss or damage to property owned by you, as a result of the transmission of your Credentials, whether caused by the negligence of the Company or otherwise. You agree to release and hold Company harmless from any loss, liability, damage or costs caused by the misuse or unauthorized disclosure of your Credentials by the Company or any third party with whom you share your Credentials.

  7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:.

    (a)      the Application will automatically download and install all available Updates; or

    (b)      you may receive notice of or be prompted to download and install available Updates.

    You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

  8. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

  9. Term and Termination.

    (a)      The term of Agreement commences when you download the Application and will continue in effect until terminated by you or Company as set forth in this Section 9.

    (b)      You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

    (c)     Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

    (d)      Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

    (e)      Termination will not limit any of Company’s rights or remedies at law or in equity.

  10. Disclaimer of Warranties.  Any and all third party information stored and accessible through the Application, including your Credentials and Gage Score, may contain technical and factual inaccuracies or errors, and your use of the Application shall be at your sole risk. Company disclaims any and all responsibility or liability for the accuracy, completeness, reliability or availability of your Credentials and Gage Score accessible by use of the Application.

    You acknowledge and agree that Company and its owners, employees, agents, contractors and users are not responsible for your use of the Application, and you assume any risk for your use of the Application and the Gage Score provided or accessed via the Application. You agree that in no event will Company or any of the developers, providers, or users of the Application, be liable to you in any manner whatsoever for any decision made, action or non-action taken by you or any third party in reliance upon the Gage Score provided through the Application.

    THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION:

    (a)      PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

    (b)     DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED $100.00.

    THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  12. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

  13. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

  14. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

  15. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

  16. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule.

  17. Binding Arbitration. THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. THEY AFFECT EACH PARTY’S RIGHTS CONCERNING THE RESOLUTION OF ANY “DISPUTE” (DEFINED BELOW) BETWEEN THE PARTIES. Before either party may initiate any legal action or proceeding or make a demand for arbitration, such party must notify the other party in writing of the dispute or controversy and make him/her/itself available to meet with the other party to attempt in good faith to resolve the dispute or controversy. If the dispute or controversy has not been resolved thirty (30) days after such notice is given, either party may initiate a legal action or proceeding or make a demand for arbitration in accordance with this section, as applicable. Any dispute or controversy arising from or relating to this Agreement or the enforcement of any provision of this Agreement (other than any claim based on unauthorized use of the Application or your infringement or misappropriation of any intellectual property rights (an “IP Claim”)) (collectively, a “Dispute”), must be arbitrated in Atlanta, Georgia before a single arbitrator who is jointly selected and mutually approved by the parties or, if the parties are unable to or fail to agree on the selection of the arbitrator within fifteen (15) days of the demand for arbitration being served, who is appointed by Judicial Arbitration and Mediation Services (JAMS) in accordance with its rules. The arbitrator shall serve as a neutral, independent, and impartial arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the expedited procedures in those rules), or, if applicable, in accordance with the JAMS International Arbitration Rules. The arbitrator shall require the non-prevailing party to pay for the costs of arbitration, including, without limitation, reasonable attorneys’ fees incurred by the prevailing party in connection with the arbitration. The results of the arbitration procedure will be considered confidential information of both parties. Any arbitration decision rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the above, neither party will be required to arbitrate an IP Claim. With respect to an IP Claim only, each party consents to the exclusive jurisdiction of, and venue in, the state and federal courts of Georgia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party agrees that any proceeding to resolve or litigate any dispute hereunder, whether in arbitration or in court, will be conducted solely on an individual basis, and neither party will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which either party acts or proposes to act in a representative capacity. The parties further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of all parties to such other arbitration or proceeding.

  18. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

  19. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

  20. Data Charges.  You acknowledge and understand that the Application requires and utilizes phone service or data access to properly function. Company does not charge for the use of Application, however carrier rates for phone or data service may apply and you are solely responsible for any such charges.