END USER LICENSE AGREEMENT AND RELEASE
This End User License Agreement and Release (the “Agreement”) is made on this day of company submittal, (the “Effective Date”) between Rare Petro Technologies, Inc., a Colorado corporation with an address of 1224 Washington Ave. Suite 10, Golden, Colorado 80401 (“Company”), and the end user (“User”), hereafter collectively referred to as the “Parties,” and individually, generally as “Party.”
1. Engagement as User. User is engaging on a single-use, month-to-month license basis Company’s TruckTrac Application, developed and solely owned by Company (the “Application”). User expressly acknowledges, understands, and agrees that all such opinions, feedback, suggestions, etc., are made voluntarily and are the genuine, individual opinions, etc., of User, and are not representative of any other group, collective, organization, or company. Company reserves the right to suspend and/or prohibit User from access to an account in the event of breached Terms and Conditions entered into by User to include but not limited to failure to pay fee(s) for license use.
2. Term. The Term of this Agreement (“Term”) shall be on a month-to-month basis or any other period of time paid up or trialed for user and user-company license. Initial license may be a period of one to three-month trial free basis, subject to change at the sole discretion of the Company by written notice via email from registration with a thirty-day window. Student licenses will require verification of academic email address and are subject to be suspended or revoked in event of failure to authenticate status as student. “Student” to be defined as any undergraduate or post-graduate status with an accredited program in the United States, working on at least six credit hours per semester.
3. Confidential Information. By agreeing to use Company’s TruckTrac Application, User acknowledges that it may have access to Company’s confidential information, as defined herein. User expressly acknowledges, understands, and agrees that Company has invested and continues to invest significant time, expense, and specialized knowledge in developing Company’s confidential information; Company enjoys a competitive advantage in the marketplace based on Company’s confidential information; and Company would be irreparably harmed if Company’s competitors obtained Company’s confidential information or if Company’s confidential information became publicly available. For purposes of this Agreement, “Confidential Information” means Company’s TruckTrac Application, as well as any data or information that is proprietary to Company and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to, any information that can reasonably be considered proprietary, confidential, a trade-secret, or otherwise valuable and uncommon information and/or knowledge. User acknowledges that the Confidential Information is proprietary to Company and that Company regards all its Confidential Information as trade secrets.
4. Disclosure of Confidential Information. Upon any disclosure of Confidential Information to User, User shall: (a) keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by User in safeguarding User’s own confidential and proprietary information, and (b) not disclose any Confidential Information received by it to any third parties (except as otherwise provided herein). User shall be responsible for any breach of this Agreement by any of User’s agent or representatives.
5. Company Ownership of Intellectual Property. All Intellectual Property shall belong exclusively to Company, its successors and assigns, irrespective of any copyright notices or confidentiality legends to the contrary. Company is the sole and exclusive owner of all right, title, and interest throughout the world in and to all the results and proceeds of all Intellectual Property. If by operation of law any such Intellectual Property, related copyrights, or otherwise is not owned in its entirety by Company automatically upon creation thereof, then User agrees to assign, and hereby assigns, to Company, and its successors and assigns, the ownership of such Intellectual Property. Any improvements, modifications, or amendments made to Company’s Intellectual Property based on any of the opinions, etc., of User given to Company pursuant to this Agreement, shall be the sole and exclusive property of Company and Company, not User, shall have and own all right, title, and interest in said improvements. For purposes of this Agreement, Intellectual Property shall mean Company’s TruckTrac Application, as well as all ideas, concepts, designs, inventions, discoveries, and improvements that are the direct or indirect result of Company’s labor and/or User’s engagement with Company. This includes all patents, copyrights, trademarks, trade secrets, and other intellectual property rights, whether made solely or jointly with others; whether or not patentable; and whether or not the conception, discovery, or making involves the use of Company’s time, facilities, equipment, or personnel.
6. Termination. Before the end of the Term, either User or Company may terminate this Agreement at any time, without cause, with thirty (30) days written notice delivered to the non-terminating Party. Company may further terminate this Agreement in the event that User fails to provide the opinions, etc., discussed in Paragraph 1 of this Agreement, or either breaches or threatens to breach any provision of this Agreement. The Parties expressly acknowledge, understand, and agree that upon any event of termination discussed immediately above, User shall forfeit all right or possession to the user account supplied to User as discussed in Paragraph 1, as well as any content generated by User in association with same.
7. Mediation/Arbitration of Disputes Among Parties. This Agreement and all transactions contemplated herein shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado. The Parties understand that all claims and disputes of any nature relating to or arising under this Agreement, any performance duties relating to or arising under this Agreement, or the relationship created thereby, any negotiations prior to the Agreement, ay representations prior to or after the execution of the Agreement, and any questions of jurisdiction, arbitrability, termination, or enforceability shall be subject to good-faith mediation within one (1) month of the event giving rise to the dispute, and, if the Parties do not settle at mediation or attend mediation within that month, then after two (2) months from the event giving rise to the dispute, then governed by three-arbitrator binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration shall be Denver, Colorado. The arbitrator may issue any preliminary, injunctive, and/or equitable relief. Any Party may commence arbitration of the dispute by sending a written request for arbitration to all other Parties to the dispute. The request shall state the nature of the dispute to be resolved by arbitration, and arbitration shall be commenced as soon as practicable after such Parties receive a copy of the written request. Parties may not sue regarding any disputes, controversies, or claims subject to this paragraph in any venue, other than an arbitration pursuant to this paragraph. All arbitration decisions shall be final, binding, and conclusive on all Parties to arbitration, and legal judgment may be entered based upon such decision in accordance with applicable law in any court having jurisdiction to do so. This arbitration agreement shall survive any termination of this Agreement. All Parties shall initially share the cost of arbitration, but the prevailing Party or Parties shall be awarded attorney fees, costs, and other expenses any arbitration or judicial proceedings.
8. Survival of Provisions. All covenants, representations, warranties, guarantees, and indemnities contained herein shall survive the termination of this Agreement and any investigation made by or on behalf of the Parties.
9. No Binding Agreement for Other Transactions. The Parties agree that neither Party will be under any legal obligation of any kind whatsoever with respect to any other transaction by this Agreement, except for the matters specifically agreed to herein. This Agreement does not create a joint venture or partnership between the Parties. This app/calculator is intended solely for the use of technical assistance in estimating values or ranges of values that may be encountered. The Company, its employees or others acting on its or their behalf, make no warranties, express, implied or statutory, as to any matter whatsoever, with respect to this calculator or its use. In particular, any and all warranties of merchantability or fitness for a particular purpose and non-infringement of third party rights are expressly excluded. The Company shall not be held liable for any use or misuse of this calculator or for any damages related thereto.
10. Applicable Law. This Agreement shall be governed by, interpreted, construed, and administered under the laws of the State of Colorado, as from time to time amended, and any applicable federal law.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, as of the day and year first above written.