This SUBSCRIPTION SERVICES TERMS AND CONDITIONS (“Agreement”) is entered into by and between RARE PETRO Technologies, Inc. (“RP”) and the entity or person (“Client”) executing an order or other document that references this Agreement (“Order”). Each of RP and Client may be referred to as a “Party” and together, the “Parties”. This Agreement is effective on the date (“Effective Date”) that is the earlier of (a) the effective date of the first Order referencing this Agreement and (b) Client’s initial access to the Services or Software.

If the person entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement in which event the term “Client” refers to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Services or Software. If you receive free access or a trial or evaluation subscription to the Services or Software, you are deemed a “Client” under this Agreement and are subject to its terms. You may not use or access the Services or Software if you are a direct competitor of RP or if you are accessing or using the Services or Software for the benefit of a direct competitor of RP.

From time to time, RP may modify this Agreement with ten (10) days’ notice to Client. Unless otherwise specified by RP, changes become effective for existing Clients upon posting of the modified Agreement. If Client objects to such changes, Client must notify RP of such disagreement within the ten (10) day notice period, and RP (at its option and as Client’s exclusive remedy) may either:

• (a) permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply; or,
• (b) terminate this Agreement and provide Client a refund of any fees that Client already paid pro-rated with respect to the terminated portion of the applicable Order Term.

RP will use reasonable efforts to notify Client of the changes through Client’s account, email, or other means. Client may be required to click to accept the modified Agreement before using the Services or Software in a renewal Order Term, and in any event continued use of the Services or Software during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.

1. DEFINITIONS
   • (a) “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. RP’s Confidential Information includes the Services and Software; and, the Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
   • (b) “Data” means data and information stored in and transmitted by the Services or Software.(c) “Report” means any analysis of Data that is provided to or accessed by Client through the Service.
   • (d) “Professional Services” means installation, implementation, customization, consulting and other professional services related to the Subscription Services as described in an Order.(e) “Service(s)” means RP’s services that are described in an Order, and/or ancillary RP products and/or services provided to Client by RP, including any mobile applications (each, a “Mobile App”).
   • (f) “Subscription Service(s)” means RP’s services that are described in an Order, and/or ancillary RP products and/or services provided to Client by RP, including any mobile applications (each, a “Mobile App”).
2. SUBSCRIPTION SERVICES AND SOFTWARE
   • (a) Subject to Client’s continuing compliance with this Agreement, Client may, on a non-exclusive basis: (i) use the Subscription Services described in the applicable Order during the applicable Order Term; (ii) store, access, and download Data (and any Reports made available by RP) in connection with such Subscription Services; and, (iii) install and use (only on devices owned or controlled by an individual that is authorized by Client to use the Subscription Services) the Mobile Apps, if any, made available by RP for use in connection with such services, in each case, solely for Client’s internal business purposes;
   • (b) Certain of the Subscription Services or features of the Subscription Services may require the Client to install software applications (the “Software”, together with the Subscription Services, “RP Technology”) to access such Subscription Services or features;
   • (c)Subject to the terms and conditions of this Agreement, Client is hereby granted a limited, non-exclusive, nontransferable, revocable right to use the Software solely for its internal purposes during the applicable Order Term;
   • (d) Client will only permit the maximum number of individuals identified on the Order, if any, to utilize a user name and password (“Account Information”);
   • (e) Client will ensure the security and confidentiality of its Account Information and is responsible for all activities performed in the Subscription Service with its Account Information;
   • (f) Client will not (and Client will not permit any third party to): (i) make the RP Technology available to any third party (via, a services arrangement, service bureau, lease, sale, resale, or otherwise); (ii) reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering and, in which instance, Client will provide notice to RP so that RP can respond and assist with such request), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the RP Technology, documentation or data related to the RP Technology; (iii) modify, translate, or create derivative works based on the Subscription Services RP Technology; (iv) circumvent any usage or access limits on the use of the Subscription Services; (v) damage, disable, overburden, impair, or disrupt the RP Subscription Services or attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the operation of the Subscription Services or in any way with the use or enjoyment of the Subscription Services by others; (vi) use the RP Technology in any unlawful manner or for any unlawful purpose or in any jurisdiction where any such use is illegal; (vii) use the RP Technology other than in accordance with this Agreement and in compliance with all applicable laws and regulations; (viii) use the RP Technology in a manner that violates any third party rights (including, without limitation, intellectual property and privacy rights); (ix) access or use the RP Technology in order to create a product competitive with the RP Technology; or (x) use the RP Technology in situations where the failure of the RP Technology could lead to death, personal injury, or physical property or environmental damage.
   • (g) Client will immediately notify RP in writing of any unauthorized use of any Account Information or the Subscription Services that comes to Client’s attention. In the event of any such unauthorized use by any third party that obtained access to the Subscription Services through Client, Client will take all steps necessary to terminate such unauthorized use. Client will provide RP with such cooperation and assistance related to any such unauthorized use as RP may reasonably request.
3. PROFESSIONAL SERVICESSubject to Client’s continuing compliance with this Agreement, RP will provide Professional Services in connection with the RP Technology if specified on the applicable Order. Such Orders will include:
   • (a) the services, functions, equipment, software, facilities, personnel and other materials, documentation and resources to be provided by each Party;
   • (b) the requirements and specifications for any work product to be developed by RP (the “Deliverables“);
   • (c) estimated delivery dates for the Deliverables; and
   • (d) Fees payable to RP for the Professional Services and Deliverables. Absent the execution of an Order, this Agreement does not, in and of itself, represent a commitment by RP to deliver Professional Services.
4. FEES
   • (a) Client will pay RP all fees identified on or referenced in the Order(s) (“Fees”), in U.S. Dollars, within thirty (30) days of the invoice date, unless a different period is specified in the applicable Order. Client will also pay RP any sales or other taxes associated with the Services (excluding taxes based on RP’s net income). RP may change the Fees and payment policies for any Services provided after the initial Order Term by providing Client with written notice thereof.
   • (b) Any amount due under this Agreement that remains unpaid after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of 1.5% per month or the maximum rate permitted by law, calculated from the date such amount was due until the date that payment is received. Client will pay RP all costs and expenses of collection (including attorneys’ fees) incurred by RP for collecting any amounts past due under this Agreement.
   • (c) If Client receives free access or a trial or evaluation subscription to the RP Technology (a “Trial Subscription”), then Client may use the RP Technology in accordance with the terms and conditions of this Agreement and the applicable Order for the period designated in such Order or otherwise by RP (and if not designated, then for ninety (90) days) (“Trial Period”). At the end of the Trial Period, the Trial Subscription will expire and Client will have the option to purchase a full subscription to the Subscription Services. If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the RP Technology unless otherwise specified in the Order for the Trial Subscription. RP has the right to terminate a Trial Subscription at any time for any reason.
5. OWNERSHIP
   • (a) As between RP and Client (or its end users), RP owns all right, title and interest in the Services, Software and Deliverables. Client acknowledges that RP provides services to other customers, and agrees, subject to RP’s confidentiality obligations hereunder, that nothing in this Agreement will be deemed or construed to prevent RP from using any Deliverables or carrying on such business with such other customers during the Order Term.
   • (b) Client hereby grants RP a world-wide, royalty free, perpetual, irrevocable, transferable license to fully practice and exploit any recommendations or ideas for improvements or enhancements to the Services or Software and to authorize others to practice and exploit such rights. All rights not expressly granted to Client in this Agreement are hereby expressly reserved and retained by RP and its licensors.
   • (c) As between Client and RP, Client owns all right, title and interest in and to the Data. Notwithstanding the foregoing, Client hereby grants RP a world-wide, royalty-free, perpetual, irrevocable, transferable license to use, distribute, and otherwise exploit Client Data for any purpose solely in anonymized de-identified form (in whole or in part) and to authorize others to exercise the foregoing rights.
   • (d) Client hereby grants to RP the right to identify Client as RP’s Client by using Client’s name, trade name, or other brand features: (i) on RP’s website(s); and, (ii) in connection with any of RP’s marketing or promotional materials that generally identify RP’s Clients of the Services, and in each case, in a manner in which RP deems, in its sole discretion, appropriate.
6. CONFIDENTIALITY
   • (a) The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and, (ii) except as otherwise expressly provided in this Agreement or authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
   • (b) The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. CONSENTSClient will obtain any consents from its end users to use the Services or Software that are required by Client’s contractual obligations with third parties, law or applicable self-regulatory principles.
8. TERM, TERMINATION AND SUSPENSION
   • (a) Unless earlier terminated as provided in the Agreement, this Agreement commences on the Effective Date and continues so long as an Order is in effect. Each Order commences on the date specified in the Order and continues for one (1) year or as otherwise specified in the Order (“Order Term”). In the event that such Order does not include a “start date”, the Order Term will commence on the date that RP provisions the applicable Services for Client. Unless otherwise specified in an Order, each Order will automatically renew for successive one (1) year periods thereafter, unless a Party notifies the other in writing, at least thirty (30) days before the applicable renewal period that it declines to renew such Order.
   • (b) Notwithstanding any other provision of this Agreement, RP may immediately suspend Client’s use of the Services, Software and/or Reports for any actual or suspected violation of any obligations under this Agreement. RP may suspend performance of the Services while any amount owed by Client remains past due. Either Party may terminate this Agreement if the other Party fails to correct any breach of any material term or condition of this Agreement within thirty (30) days from written notice.
   • (c) Upon termination or expiration of the Agreement, Client will cease all access and use of the Services and Software. Not limiting the foregoing, in the event this Agreement expires or is terminated: (i) Client will not be entitled to any refunds of any Fees; and, (ii) Client will promptly pay any outstanding balance for the Services and Software rendered through the date of termination. The following sections will survive any expiration or termination: 2(d), 2(e), 2(f), 2(g), 4 (with respect to Fees owing as of the date of expiration or termination), 5, 6, 8(c), 9, 10, 11 and 12.
9. WARRANTY DISCLAIMERS.EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER): EACH PARTY HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE; AND, THE SERVICES, SOFTWARE, REPORTS, AND ANY OTHER INFORMATION IS PROVIDED BY RP “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND.Client represents and covenants that Client has not relied on any other warranties or representations concerning RP or the Services or Software.
10. INDEMNIFICATIONClient will indemnify, hold harmless and defend RP from any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by RP arising out of or relating to:
    • (a) Client’s breach of any term or condition of this Agreement;
    • (b) Client’s misuse of the Services
    • (c) Client’s Data
    • (d) Client’s provision of services to end users; or,
    • (e) violations of any laws, rules or regulations applicable to Client’s use of the Services or Reports, including without limitation, privacy laws.
11. LIMITATION OF LIABILITYTO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF RP HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, WITH THE EXPRESS EXCEPTION OF DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS, RP’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL:
    • (A) RP BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES; AND,
    • (B) RP’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO RP IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.

    Client acknowledges that the Fees, exclusions, disclaimers and limitations of liability set forth in this Agreement are essential components of this Agreement and form the basis for determining the price charged for the Services and Software, and that RP would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.

12. GENERALThis Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings and contemporaneous communications. This Agreement may not be modified except by written agreement of both Parties. Client will not assign any of the rights or obligations granted hereunder, except with the express written consent of RP, and any attempted assignment in violation of this paragraph is void. RP may assign this Agreement or delegate its obligations hereunder without restriction. The Parties are independent contractors; and, this Agreement does not create or imply any partnership, agency or joint venture. A waiver of any provision of this Agreement must be signed by the waiving Party; and, one waiver will not imply any future waiver. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without regard to or application of any conflicts of law rules or principles. All claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts for the State of Colorado, United States; and, Client consents to such personal jurisdiction of such courts. If any provision (or any part thereof) of this Agreement is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired. Any notice or other communication under this Agreement given by any Party to any other Party must be in writing and will be effective upon delivery as follows:
    • (a) if to Client, (i) when delivered via registered mail, return receipt requested, to the address specified in the Order or otherwise on record for Client; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Client; and
    • (b) if to RP, when sent via registered mail, return receipt requested, to RP at 1224 Washington Ave, Ste 10 Golden, CO 80401 or such other address which RP may specify from time to time.

    This Agreement may be executed in counterparts, all of which together shall constitute a single agreement and any one of which shall be deemed an original. A facsimile or scanned copy of a signed counterpart shall be treated as an original.