ESGAUGE—User Agreement

This Agreement (the "Agreement") is between you (the "Subscriber") and Esgauge ("Esgauge"). By accessing or using this website(the “Site”)or receiving any of its Intellectual Property, as defined below, the Subscriberacknowledges to have read and understood and to accept without modifications the terms, conditions, and notices contained in the Agreement, including the collection, use and disclosure of personal information as described in the Privacy Statement. The Subscriber’s continued use of the Site constitutes an agreement to all such terms, conditions, and notices.

  1. 1. OWNERSHIP AND USE OF THE SITE. The Siteis comprised of software (“Software”) and other intellectual property, including without limitation text, data, reports, documents, and images (collectively, the "Content")that is either proprietaryto Esgaugeor licensed by Esgauge from third parties ("Third-Party Suppliers"). The Subscriber agrees that access to the Site does not constitute a sale of theSoftware or the Content by either Esgauge or Third-Party Suppliers. The Subscriber agrees thatEsgaugegrants the Subscriber non-exclusive and non-transferable limited right to access and use for noncommercial use the Software and the Content solely for use in the Subscriber’s ordinary course of business. The Subscriber will not rent, lease, trade, or sell to others the Software or the Content, or permit access thereto, in any form. The Subscriberagrees not to alter, decompile, or disassemble the Software and not to reproduce, modify or in any way commercially exploit any of the Software or the Content. Furthermore, the Subscriber understands that Esgauge or the Third-Party Suppliers have proprietary rights in certain trademarks, service marks, trade names, corporate names and other information included in the Software or the Content and agrees not to use the Software or the Content in any way that would infringe upon those proprietary rights. In particular, the Subscriber agrees not to alter, obscure or remove any copyright or other proprietary notices included in the Content. Notwithstanding the aforementioned, the Subscriber may include parts of theContent in presentations, pitchbooks and reports that are part of the Subscribers normal business services.

  2. 2. NO ADVICE OR SOLICITATION. The Content is for informational purposes only and should not be used or construed as an offer to sell, a solicitation of an offer to buy, or an endorsement, recommendation or sponsorship of any company or security by Esgauge, its affiliates, officers, directors, employees or agents. The Subscriber acknowledges that any reliance upon any Content displayed or distributed through the Site is at the Subscriber’s sole risk. Esgauge reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Site.

  3. 3. EQUIPMENT AND CONFIGURATION. The Subscriber shall be responsible for the Internet communication service and any device or equipment necessary to use the Site. In its sole discretionEsgauge may, from time to time, make modifications to the Siteirrespective of whether such modifications would require changes to be made by the Subscriber to any device or equipment used to access the Site. The Subscriber understands and agrees that nothing in the Agreement shall be deemed to constitute an undertaking by Esgauge to continue to disseminate the Site in its present form or configuration. The Subscriber agrees that Esgaugeshall not be responsible if such changes affect the Subscriber’s access to or use of the Site.

  4. 4. COOKIES, CONTACT DETAILS AND OTHER PERSONAL INFORMATION.The Subscriber hereby agrees tothe collection, use and disclosure by Esgauge of personal information as described in the Privacy Statement. Esgauge reserves the right to use contact details provided by the Subscriber to provide product updates, billing information, and promotional offers. The Subscriber hereby agrees to not share the Site’s username and/or password with any third party.Esgauge employs cookie technology to help visitors navigate the Site. Cookies are small files that the Subscriber’s web browser places on the Subscriber’s computer's hard drive. Eagauge uses cookies to remember user names and passwords and preferences and track click streams. Because of its use of cookies, Esgauge can deliver faster service, update results, and provide a more personalized Site experience. In order for the services to work you cannot set up your browser to reject cookies. Esgauge collects IP Addresses and usage information when the Subscriber’s uses the Site. This information is used on an aggregate basis to evaluate the frequency and length of visits.

  5. 5. SUBSCRIPTION FEES. Access to the Site is offered on a recurring subscription basis.Subscription fees are set forth on the Site and may be amended at Esgauge’s sole discretion from time to time without notice. Fees are payable in advance, by credit card, monthly or annually. By agreeing to the Agreement, the Subscriber hereby agrees to provide Esgauge with the right to debit the Subscriber’s credit card monthly or annually in advance for access to the Site.

  6. 6. TERM AND CANCELLATION. The initial term of the Agreement is of 12 months and shall commence either on the date when the Subscriber clicks on the "Agree" button on the Site or on the date when the Subscriber first accesses the Content of the Site, whichever date occurs first. Subsequent to the initial term, the term of the Agreement shall automatically be extended for successive 12-month terms unless terminated by one of the parties. The Subscriber may cancel at any time prior to the end of each term,bysubmitting a cancellation request in writing via email to billing@esgauge.com. The Subscriber agrees that no refunds will be granted for already billed subscriptions.

  7. 7. NONCOMPLIANCE, MISREPRESENTATION OR DEFAULT.The parties hereto shall act in good faith in the performance of their respective obligations under the Agreement and shall act as promptly as is reasonably practicable under the circumstances in granting or denying any consent or approval required hereunder.If Esgauge determines, in its sole discretion, that the Subscriber: i) is misusing its account or otherwise not complying with any of the terms or conditions set forth in the Agreement; ii) has made untrue representations upon subscribing to the Site or entering into the Agreement; or iii) a petition or other proceeding in bankruptcy, insolvency, or for the appointment of a receiver is filed by or against the Subscriber, then Essgauge shall have the immediate right, in its sole discretion, to take one or more of the following actions: a) to terminate the Agreement without notice; or b) to pursue such other remedies as it may be entitled to by virtue of or under the Agreement, or at law or in equity.

  8. 8. INDEMNIFICATION . The Subscriber represents and warrants that the Subscriber is not engaged in, and agree not to engage in, any unlawful transaction or business, and/or will not use or knowingly permit anyone to use the Site for: i) any purpose or in any manner not authorized by the Agreement, or ii) for any unlawful purpose or in any manner not in compliance with the statutes, rules and regulations referenced in Section 1.The Subscriber hereby agrees to indemnify, defend and hold harmless Esgauge from and against any and all liability and costs incurred by Esgauge in connection with the Subscriber’s use of the Site, the Software or the Content or in connection with any claim arising out of any breach or alleged breach of any of the Subscriber’s obligations set forth herein. The Subscriber shall cooperate as fully as reasonably required in the defense of any claim brought by third parties, which may be covered by the preceding sentence.

  9. 9. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, SUBSCRIPTION, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATABILITY, SECURITY, ACCURACY, OR NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ESGAUGE MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE UNDER ANY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE BY ESGAUGE. ESGAUGE DOES NOT WARRANT (I) THAT THE FUNCTIONS CONTAINED IN THE SITE OR YOUR SUBSCRIPTION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (II) THAT DEFECTS OR ANY ERRORS WILL BE CORRECTED, (III) THAT THE SITE OR THE SUBSCRIBER’S SUBSCRIPTION WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, (IV) THAT THE SITE, INCLUDING THE SERVER(S) ON WHICH THE SITE IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY THE SUBSCRIBER THROUGH THE SITE OR THE SUBSCRIBER’S SUBSCRIPTION WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SUBSCRIBER’S SUBSCRIPTION IS DONE AT THE SUBSCRIBER’S OWN DISCRETION AND RISK AND THE SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE SUBSCRIBER FROM ESGAUGE OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

  10. 10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ESGAUGE AND ITS STRATEGIC PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (I) THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF ESGAUGE, ITS STRATEGIC PARTNERS OR ITS PROVIDERS OF TELECOMMUNICATIONS OR NETWORK SERVICES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE ; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (V) ANY OTHER MATTER RELATING TO THE SITE . THE TOTAL LIABILITY OF ESGAUGE HEREUNDER IS LIMITED TO THE AMOUNT, IF ANY, ACTUALLY PAID BY THE SUBSCRIBER’S FOR ACCESS AND USE OF THE SITE. THE SUBSCRIBER’S HEREBY RELEASESESGAUGE FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

  11. 11. FORCE MAJEURE. In addition to the provisions above, neither the Subscriber nor Esgauge shall be liable for delay or failure in performance of any of the acts required by the Agreement when such delay or failure arises from circumstances beyond the reasonable control and without the gross negligence or willful misconduct of the Subscriber or Esgauge, respectively. Such causes may include, without limitation, acts of God, acts of government in its sovereign or contractual capacity, acts of public enemy, acts of civil or military authority, war, riots, civil strife, terrorism, blockades, sabotage, rationing, embargoes, epidemics, earthquakes, fire, flood, quarantine restrictions, power shortages or failures, utility or communication failure or delays, labor disputes, strikes, or shortages, supply shortages, equipment failures, or software malfunctions. The time for performance of any act delayed by such events may be postponed for a period equal to the period of the delay.

  12. 12. ENTIRE AGREEMENT AND SEVERABILITY. The Agreement constitutes the entire agreement between you and Esgauge with respect to the subject matter hereof, and supersedes all prior negotiations, communications, understandings and agreements with respect thereto.Any section, subsection or other subdivision of the Agreement or any provision of the Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed from the Agreement, shall be ineffective to the extent of such illegality, invalidity or unenforceability, and shall not affect or impair the remaining provisions of this Agreement.

  13. 13. GOVERNING LAW. This agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of New York, and any action, suit or proceeding instituted hereunder shall be maintained in the state courts of the State of New York or the federal courts located in the State of New York, which courts shall have exclusive jurisdiction for such purposes.The Subscriber agrees to comply with applicable state, local, federal or foreign laws and regulations, including laws and regulations regarding customer solicitation, telemarketing, and privacy regarding the products and the collection, processing or transfer of information or software.

  14. 14. NOTICES. All notices and other communications required or permitted under the Agreement shall be delivered in writing to the appropriate address as described below. Notices to Esgauge must be sent to: billing@esgauge.com. Notices to the Subscriber will be sent to the e-mail address provided by the Subscriber during Esgauge’s sign-up process.Either party may change its address for service or specify a different contact person for purposes of this section by giving notice as provided hereunder.

  15. 15. ASSIGNMENT. The Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. The Subscriber shall not assign the Agreement or any of the Subscriber’s rights and obligations hereunder without the prior written consent of Esgauge, which shall not be unreasonably withheld. Esgauge may assign the Agreement and all of Esgauge's rights and obligations hereunder to an affiliate or subsidiary or to the surviving entity in the case of a merger or sale of all or substantially all of the assets of Esgauge, provided however, that such assignment shall not relieve Esgauge of its obligations hereunder.

  16. 16. CHANGES AND MODIFICATIONS. Esgauge reserves the right to amend the Agreement from time to time. Any amendment is effective upon the posting of the revised Agreement on the Site. The Subscriber’s continued use of the Site or its Content following any posted amendment to this Agreement shall be conclusively deemed an acceptance of such amendment.

  17. 17. SURVIVAL. The provisions of Sections 1 (Ownership and Use of the Site), 2 (No Advice or Solicitation), 3 (Equipment and Configuration), 4 (Cookies, Contact Details and Other Personal Information), 7 (Noncompliance, Misrepresentation or Default), 8 (Indemnification), 9 (Disclaimer of Warranty), 10 (Limitation of Liability), 11 (Force Majeure), 12 (Entire Agreement and Severability), 13 (Governing Law), and 14 (Notices) shall survive the completion of performance or any termination of this Agreement.