MiLo General Terms

Last updated: October, 2024

About this Document

These MiLo General Terms (“General Terms”, and collectively, together with all Order Forms, and amendments, if any, this “Agree-ment”) is an agreement between Compton Integrated Analytics, LLC, a [Colorado] limited liability company with offices at 20231 Max-well Drive Morrison, CO (“Company”), and the organization identified by Company (including as the counterparty on an Order Form) as accessing or using a Service (“Subscriber” or “you”).

These General Terms apply to Company’s SaaS-based well pad design planning and visualization tool, and all related software tools and functionalities (collectively, “MiLo”), and any Consulting Services that Company provides to you. These General Terms also set forth Company’s obligations with respect to the security and processing of Subscriber Data. In addition to these General Terms, each indi-vidual Service is subject to the terms of the relevant Order Form for that Service.

BY ACCEPTING THIS AGREEMENT (EITHER BY ENTERING INTO AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY CLICKING “ACCEPT” OR A SIMILAR BUTTON), YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT. YOU REPRESENT AND WARRANT TO COMPANY THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR). YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUBSCRIBER AND HAVE THE AUTHORITY TO BIND SUBSCRIBER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ENTER INTO ANY SUCH ORDER FORM THAT REFERENCES THIS AGREEMENT, AND YOU MUST NOT ACCESS OR USE ANY SERVICE OR DOCUMENTATION.

1. Definitions

Terms not defined elsewhere in this Agreement shall have the meanings set forth below.

1.1. “Affiliate” shall mean any entity that Controls, is Controlled by, or is under common control with another entity.

1.2. “Aggregated Data” shall mean de-identified or aggregated instances of (i) Subscriber Data, (ii) technical data, (iii) data regarding Company’s performance of the Services, and/or (iv) data regarding Subscriber’s usage of the MiLo (none of which shall identify Subscriber as the entity to which such data relates).

1.3. “MiLo” shall mean the functionality provided by MiLo, as such functionality shall be maintained and Enhanced by Company as necessary to deliver that functionality in compliance with its specifications.

1.4. “Confidential Information” shall mean documents, data, technology, and information which, when provided by a disclosing party to a receiving party: (i) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; (ii) are disclosed orally or visually, and identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within ten (10) business days; or (iii) a reasonable business person would understand to be confidential or proprietary at the time of disclosure.

1.5. “Consulting Services” shall mean setup, configuration, commissioning, customization, development, implementation, and/or training services for MiLo, and/or custom reporting or analytics services, each as specified in an Order Form.

1.6. “Controlled” and the related term “Controls” shall mean a relationship in which a separate entity: (i) owns or controls, directly or indirectly, at least fifty percent (50%) of the stock, partnership shares, membership interests or other equity interests in the subject entity having the right to vote for or appoint directors thereto, and/or (ii) has the right to determine management direction, whether through having a majority representation on a board of directors of a corporation, by contract or otherwise.

1.7. “Documentation” shall mean any documentation, specifications, manuals, or written instructions provided for the operation or use of the MiLo, excluding marketing literature.

1.8. “Enhance” and the related term “Enhancement” shall mean revised in a manner that improves the operation of MiLo or the accuracy of its Outputs, but that does not introduce substantially new functions or capabilities.

1.9. “Interest” shall mean interest at the rate which is the lesser of one and a half percent (1.5%) per month or the maximum interest rate permitted by the applicable law.

1.10. “Order Form” shall mean the Company order document for a Service signed by Company and countersigned or electronically accepted by Subscriber, or, where applicable, an internet order page that evidences Subscriber’s purchase of a Subscription (as defined in Section 2.1 below) or Consulting Services.

1.11. “Output” shall mean the analyses, intelligence, Visualizations, and/or reports produced by any Services, including those produced by a MiLo as a result of processing Subscriber Data.

1.12. “Representative” shall mean a director, officer, employee, consultant, or contractor of a party or one of its Affiliates.

1.13. “Services” shall mean, collectively, MiLo and Consulting Services purchased by Subscriber, and each is individually referred to as a “Service”.

1.14. “Subscriber Data” shall mean data that is input into MiLo.

1.15. “Tax Gross-Up” means the amount of funds that must be paid to Company in order to permit Company to retain the full amount of any net fee due Company hereunder, after the effect of any withholding or other payment of taxes associated with such payment of fee.

1.16. “Visualization” shall mean a graphical representation of a potential site layout generated by MiLo using by Company’s proprietary algorithm.

2. License Grant and Restrictions

2.1. MiLo License. Upon receipt by Company of the applicable Fees (as defined in Section 4 below) and subject to the terms and limitations set forth in this Agreement, the Order Form, and the applicable Documentation, Company grants to Subscriber and its respective Representatives a limited, worldwide, non-exclusive, non-transferable right and license (with no right to sublicense) to use MiLo during the Term (as defined in Section 10 below) solely for Subscriber’s internal business purposes (except as otherwise ex-pressly set forth herein) and solely in accordance with any applicable restrictions or conditions set forth in the applicable Order Form. Subscriber shall be responsible for all acts and omissions of persons who use the Services and Documentation and for ensuring their compliance with this Agreement. Subscriber shall immediately notify Company of any loss or unauthorized access or use of a personal user ID or password.

2.2. MiLo Restrictions. The access and use of MiLo granted in Section 2.1 is the only right of access or usage of MiLo granted to Subscriber under this Agreement. Subscriber shall not (i) reverse engineer, disassemble, or decompile, or attempt to reverse engi-neer, disassemble, or decompile any element of MiLo or attempt to emulate any features, functionality or user interface present in MiLo, (ii) rent, lease, sublicense, sell, distribute, convey, assign, loan or otherwise transfer MiLo to anyone, (iii) use MiLo to operate as an application service provider, software-as-a-service provider or a service bureau or use MiLo for the benefit of any third party, (iv) fail to treat MiLo or Documentation as Company’s “Confidential Information” in accordance with Section 6, (v) permit any Company competitor to access or use MiLo, or (vi) direct or permit any third party to take any action prohibited by clauses (i) – (v) above.

2.3. Visualization License. Subject to the terms and limitations set forth in this Agreement and the applicable Documentation, Company grants to Subscriber a perpetual, irrevocable (except in the event of a breach of the license rights granted in Sections 2.1 and 2.3), worldwide, royalty free license to use Visualizations for Subscriber’s business purposes.

2.4. Restrictions. Subscriber shall not (i) reverse engineer, disassemble, or decompile, or attempt to reverse engineer, disas-semble, or decompile MiLo, Outputs, and/or Visualizations, or any associated algorithms, formulas, processes, or know-how, (ii) rent, lease, sublicense, or otherwise sell MiLo, Outputs, and/or Visualizations to anyone, or (iii) apart from though the use of MiLo, alter, adapt, manipulate, transform, translate, create derivative works from, or otherwise modify any Outputs or Visualizations, or (iv) direct or permit any third party to take any action prohibited by clauses (i) – (iii) above.

2.5. As between Company and Subscriber, Company possesses all worldwide rights in and to MiLo, Documentation, and Out-puts, including title to all embodiments thereof, as well as all other Company technology (including any other software-as-a-service offering), systems, solutions, processes, methodologies, models, benchmarking information or data, and all related technologies, in-ventions, ideas, works of authorship, strategies, algorithms, data, and know-how, and includes, without limitation, all modifications, enhancements, and derivatives thereof, whether created or developed before, during or after the term of the Agreement, whether or not in connection with the Services (collectively, “Company Technology”). No provision contained in this Agreement conveys to Subscriber or any other entity or person any right, title, or ownership interest in any Company Technology other than the limited ac-cess and usage rights granted in Sections 2.1 and 2.3. Subscriber shall make no modifications, enhancements, derivative works, or changes of any nature to the Company Technology without the prior written consent of Company. As between Subscriber and Com-pany, all modifications, Enhancements, derivative works, or changes of any nature to the Company Technology shall be the sole and exclusive property of Company (regardless of who authored or created them).

2.6. Under no circumstances shall any provision of this Agreement be construed as granting to Subscriber, by implication, es-toppel or otherwise (i) a right to any Company Technology or other property of Company other than (a) a right to access or use MiLo and/or its corresponding Documentation in any manner not expressly contemplated herein, and (b) a right to Outputs, except for Visualizations; (ii) a license under any intellectual property rights held by Company; or (iii) any rights or licenses with respect to the Company Technology (other than the access and usage set forth in Section 2.1).

2.7. Subscriber shall not remove, obscure, or modify any copyright, trademark, patent, or other proprietary rights notice that appears in MiLo or Documentation. Subscriber agrees not to contest Company’s title and intellectual property rights in or to the Company Technology.

2.8. Consulting Services. Company agrees to provide the Consulting Services for Subscriber that are specified in one or more Order Forms. Each Order Form shall set forth the business terms and requirements governing an engagement for Consulting Ser-vices, including, without limitation, as applicable, a detailed description of the Consulting Services to be performed, deliverables, pric-ing, payment schedule, and/or estimated project timeline. All Consulting Services will be rendered remotely unless otherwise speci-fied in an Order Form, and where the Order Form does not provide that Consulting Services will be rendered onsite at Subscriber’s facility, Subscriber shall have the right to pre-approve any travel. Where an Order Form specifies that Consulting Services are to be performed onsite at Subscriber’s facility, Subscriber is responsible for providing Company’s personnel with access to workspace and computers, telephones, and other equipment as may be reasonably required for the project. The parties agree to cooperate with each other as reasonably necessary for Company to provide the Consulting Services in a timely, uninterrupted fashion. Company shall not be responsible for any delays in project timelines attributable to Subscriber’s failure to provide timely assistance, feedback, con-tent, or other interaction or information needed for a project. Fees do not include third-party expenses, such as travel and meals, courier service, supplies, and equipment, which shall be invoiced to Subscriber at cost. Unless otherwise specified in an Order Form, all Fees for Consulting Services and expenses will be invoiced monthly. All project costs quoted in an Order Form, unless expressly specified in the Order Form, are reasonable good-faith estimates by Company based solely on the information provided by Subscriber thus far, the specifications set forth in the Order Form, and the other requirements set forth therein. Changes in specifications, data, functionality, technology, or other requirements requested by Subscriber, or discovery of material information not previously dis-closed to Company, may impact scope of work and project cost, and thus may require execution of a change order or separate Order Form. Company shall not be required to deviate from the project scope or other requirements known as of the effective date of an Order Form unless and until both it and Subscriber have executed a mutually acceptable change order or amendment. Any work outside the scope of an Order Form will be billed at Company’s then-current hourly rates for Consulting Services.

3. Security.

3.1. Security Breach Response. Company shall notify Subscriber without undue delay of any breach of security of MiLo that is confirmed by Company and which results in the unauthorized access, acquisition, use, loss, destruction, compromise, or disclosure of any Subscriber Data stored by MiLo (a “Security Breach”). In the event of a Security Breach: (1) Company shall make available to Subscriber details of the Security Breach that are reasonably available to Company; (2) except as otherwise required by applicable law or regulation, Company will not inform any data subject or governmental authority of a Security Breach without Subscriber’s prior consent; (3) Company shall provide Subscriber with a remediation plan that shall address the Security Breach and indicate how Company intends to mitigate the incident and reasonably prevent its recurrence; (4) Company shall remediate the effects of the Security Breach in accordance with the remediation plan; and (5) Company shall reasonably assist Subscriber in investigating and remediating the Security Breach.

4. Payment of Fees

Subscriber agrees to pay each of the fees and rates set forth on each Order Form (“Fees”). Company will invoice Fees as provided in the relevant Order Form. All Fees, payments, and deposits are non-refundable (except as expressly provided otherwise in this Agreement). All amounts due by Subscriber hereunder shall be paid within thirty (30) days from the date of Subscriber’s receipt of Company’s invoice, in US Dollars. Interest shall accrue on all payments outstanding after the respective payment term has concluded. Company may also temporarily suspend provision of any Services if any Fees or other amounts owed under this Agreement are over-due and are not paid in full within seven (7) days after Company sends written or e-mail notice of the delinquency to Subscriber. In addition, Company shall be entitled to recover its collection costs incurred as a result of lateness or default in payment, as well as Company’ other costs of enforcing Subscriber’s payment or other obligations under this Agreement, including reasonable attorneys’ fees.

The Fees shall increase annually each year, provided that each annual increase shall be limited to the greater of (a) the National Con-sumer Price Index plus 5%, or (b) 3%. The National Consumer Price Index means the percentage change in Consumer Price Index for All Urban Consumers (“CPI-U”), as reported by the U.S. Bureau of Labor Statistics, U.S. city average, unadjusted, all items, for the 12-month period immediately preceding the effective date of the annual increase in Fees.

Notwithstanding anything to the contrary, Subscriber acknowledges and understands that Company may add new features or func-tionalities to the Services from time to time, and/or issue material feature upgrades or new releases of the Services (all of the forego-ing, collectively, “New Features”), and Subscriber’s ability to access and use such New Features may be contingent on Subscriber’s payment of additional fees.

5. Taxes

The Fees for the Services do not include taxes. Subscriber shall be responsible for assessing and remitting any applicable sales, use, export, customs, value added or similar taxes and duties payable with respect to the provision of the Services and Documentation, or arising out of or in connection with this Agreement, unless such taxes levied or imposed are based upon Company’s net income. All payments by Subscriber under this Agreement shall be made free and clear of and without deduction for, or on account of, any taxes, duties, fees, levies, and other governmental charges of any kind as may be payable by Subscriber, other than withholding as may be required by applicable law. If applicable law requires Subscriber to withhold taxes, duties, fees, levies or charges of any kind on any amounts paid by Subscriber to Company hereunder, Subscriber may deduct such taxes, duties, fees, levies or charges from such payments, provided: (i) such taxes, duties, fees and charges are paid to the appropriate authorities and (ii) Subscriber increases each of the amount(s) that it pays Company by the applicable Tax Gross-Up.

6. Confidential Information; Feedback.

6.1. Each party (as the “receiving party”) will hold all Confidential Information of the other party (as the “disclosing party”) in strict confidence, shall not use such Confidential Information of the disclosing party for any purpose other than to perform its obligations or to exercise its rights under this Agreement, and shall only disclose Confidential Information of the disclosing party to those of the receiving party’s Representatives who are bound by written or fiduciary obligations of confidentiality that are at least as stringent as those set forth herein and who have a need to know that information in order to enable the receiving party of that information to perform its obligations or exercise its rights under this Agreement. Without limiting anything else in this Agreement, Company Confidential Information and trade secrets shall be deemed to include, without limitation, (a) all Company Technology, (b) the results of benchmark and other tests run by either party with respect MiLo, (c) the structure of any technology, processes, or algorithm constituting a part of or used in MiLo and the characteristics of that technology that are not observable through normal interaction with the user interface; and (d) Company’s pricing for the Services. The terms and conditions of this Agreement shall be considered Confidential Information of both parties. Each party’s nondisclosure obligation shall not apply to information which: (i) is or has become public knowledge through no fault of the receiving party or its Representatives; (ii) has been rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation owed to the disclosing party; (iii) is already known by the receiving party at the time of disclosure, or (iv) is independently developed by Representatives of the receiving party without use of or reference to such information, as demonstrated by the receiving party’s contemporaneous written records.

6.2. During the Term, the receiving party may disclose Confidential Information of the disclosing party as required to comply with a binding judicial or other governmental order or as otherwise required by law or the rules of a securities exchange, provided that the receiving party (i) gives the disclosing party reasonable written notice prior to such disclosure (except to the extent receiving party’s compliance with the foregoing would cause it to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed. In addition, either party may disclose the existence and terms of this Agreement as it deems necessary to satisfy any due diligence obligations it may have relating to any potential merger, acquisition, investment, or other strategic corporate transaction, provided that the third party conducting the diligence signs a non-disclosure agreement containing confidentiality obligations at least as stringent as this Agreement.

6.3. Subscriber has no obligation to give Company any suggestions, comments or other feedback relating to MiLo (“Feedback”). Company may use and include any Feedback that Subscriber voluntarily provides, and Company may also derive, generate, and use Aggregated Data, to develop and improve MiLo, its Documentation, and other Company products and services, and to develop new ones. Accordingly, if Subscriber provides any Feedback, Subscriber agrees that Company and all of Company’s licensees may freely use, reproduce, license, distribute, implement, and otherwise commercialize that Feedback without the obligation to obtain consent or pay any additional consideration to Subscriber. Subscriber further acknowledges and agrees that MiLo may incorporate machine learning and artificial intelligence technology, and as such, use of the Subscriber Data and Outputs by Company includes use for Company’s own business purposes, including developing, training, and improving the analytics algorithms and other functionality and features of MiLo for the benefit of Company and Company’s client base (“AI Learning Data”). Company will ensure that its use of AI Learning Data does not identify Subscribe to any other Company customer that uses MiLo.

7. Representations and Warranties

7.1. Company represents and warrants that throughout the Term, MiLo will operate in substantial conformity with its Documentation, provided that the foregoing warranty shall not apply to any failure or defect in MiLo that results from (i) Subscriber (a) operating MiLo other than in accordance with its Documentation, (b) modifying MiLo, (c) abusing or otherwise mistreating MiLo; (ii) failures or improper use or configuration of Subscriber or third-party hardware, software, equipment or networks, or incorrect, invalid, or incomplete data submitted by Subscriber or its Representatives, (iii) new data or functionality entered dynamically or through formal release process by Subscriber or third parties, or changes in or upgrades to operating systems, or (iv) an event of Force Majeure (as defined in Section 11). Company does not warrant that MiLo shall operate in an error-free or uninterrupted manner. Should MiLo fail to operate in accordance with the warranty set forth in the first sentence of this section, upon its receipt of written notice of such failure from Subscriber, Company shall attempt to remedy the nonconformity in MiLo’s operation by providing a workaround, a patch or other fix, at no charge to Subscriber.

7.2. Each party represents and warrants to the other party that it shall comply with all laws and regulations applicable to its geographic jurisdiction and its business activities under this Agreement. For clarity, with respect to Company as the warranting party, the foregoing warranty excludes any laws or regulations specifically applicable to Subscriber that are not generally applicable to U.S. technology service providers and, in particular, does not render Company responsible for ensuring that Subscriber’s activities and business are conducted in compliance with all applicable laws and regulations.

7.3. Subscriber represents and warrants to Company that Subscriber has all rights and permissions necessary to provide the Subscriber Data to Company for processing in accordance with this Agreement, and the Subscriber Data will not violate the rights of any third party.

7.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS PROVIDED IN SECTIONS 7.1, AND 7.2, COMPANY AND ITS LICENSORS, SUPPLIERS AND AFFILIATES PROVIDE THE MiLo AND ITS DOCUMENTATION “AS IS” AND WITH ALL FAULTS, AND DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, UPTIME, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, LEGAL AND REGULATORY COMPLIANCE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, ANY STATUTORY REMEDY, OR ANY WARRANTY THAT THE MiLo WILL MEET ANY SUBSCRIBER REQUIREMENTS. IN ADDITION, Company DISCLAIMS ANY AND ALL LIABILITY TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY PROPERTY DAMAGE, INJURY OR DEATH WHICH WOULD HAVE BEEN AVOIDED (1) HAD THE MiLo BEEN DESIGNED TO INCLUDE FUNCTIONALITIES OR FEATURES NOT PRESENT IN IT, OR (2) HAD SUBSCRIBER NOT INPUT INACCURATE DATA INTO THE MiLo, OR OPERATED THE MiLo IN A MANNER CONTRARY TO ITS DOCUMENTATION. SUBSCRIBER FURTHER ACKNOWLEDGES THAT THE SOLE FUNCTIONALITY OF THE MiLo IS TO PROVIDE POTENTIAL SITE LAYOUTS BASED ON COMPANYS’S PROPRIETARY ALGORITHM, THAT NEITHER COMPANY NOR MiLo IN ANY WAY SUGGEST OR ENDORSE THE IMPLEMENTATION OF THE POTENTIAL LAYOUT CONTAINED IN ANY OUTPUT AND VISUALIZATIONS, AND THAT THERE ARE OTHER METHODS AND TECHNIQUES TO CALCULATE, FORMULATE, OR OTHERWISE CREATE POTENTIAL SITE LAYOUTS WHICH MAY SUGGEST ALTERNATIVES TO THOSE CONTAINED IN OUTPUTS AND VISUALIZATIONS. COMPANY SHALL HAVE NO LIABILITY ARISING FROM DECISIONS MADE OR ACTIONS TAKEN BY SUBSCRIBER BASED ON SUBSCRIBER’S USE OF OR RELIANCE ON ANY OUTPUTS AND VISUALIZATIONS PRODUCED BY THE MiLo, ALL OF WHICH IS ENTIRELY AT SUBSCRIBER’S OWN RISK. SUBSCRIBER AGREES THAT THEY SHALL BE SOLELY RESPONSIBLE FOR ANY DECISION TO IMPLEMENT OR NOT IMPLEMENT ANY SITE LAYOUT CONTAINED IN AN OUTPUT OR VISUALIZATION, INCLUDING BUT NOT LIMITED TO ANY DECISIONS RELATED TO THE MANNER OF IMPLEMENTATION, AND THAT COMPANY SHALL HAVE NO LIABILITY ARISING FROM ANY SUCH IMPLEMENTATION. SUBSCRIBER FURTHER ACKNOWLEDGES THAT ARTIFICIAL INTELLIGENCE IS A NASCENT, RAPIDLY EVOLVING TECHNOLOGY, AND, AS SUCH, SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR COMPLYING WITH ANY LAWS, RULES, AND REGULATIONS APPLICABLE TO ITS USE OF ANY RELEVANT COMPANY TECHNOLOGY, THE OUTPUTS, AND/OR VISUALIZATIONS, AND FOR SUBSCRIBER’S USE OF ARTIFICIAL INTELLIGENCE TOOLS TO ANALYZE ANY OUTPUTS AND VISUALIZATIONS. SUBSCRIBER FURTHER ACKNOWLEDGES THAT DECISIONS INVOLVING THE MiLo, OUTPUTS, AND/OR VISUALIZATIONS COULD BE ASSOCIATED HAZARDS RESULTING IN DEATH, SERIOUS PERSONAL INJURY, SIGNIFICANT ENVIRONMENTAL DAMAGE, OR OTHER DAMAGE AND LIABILITIES, AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY OF THE FOREGOING UNLESS A COURT OF COMPETENT JURISDICTION FINALLY DETERMINES THAT SUCH LOSS OF CONTAINMENT OR HAZARDS WERE DIRECTLY AND SOLELY CAUSED BY COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

8. Indemnification

8.1. Company agrees to defend, indemnify, and hold harmless Subscriber at Company’s expense in a lawsuit, judicial action, or similar proceeding brought against Subscriber by a third party, and pay the amount of any adverse final judgment (or settlement to which Company consents) from such lawsuit, judicial action, or similar proceeding, with respect to any third party claim(s) that MiLo or its Documentation infringes any United States patent, trademark or copyright or operates through the misappropriation of a trade secret. Company shall have no obligations under the previous sentence with respect to any infringement claim based on (a) use of MiLo in combination with any other item of software or a process or service or device not provided to Subscriber by Company, (b) modification or alteration of MiLo by someone other than Company, or (c) Subscriber Data, including inaccurate data input into MiLo by Subscriber, or operation of MiLo in a manner contrary to its Documentation or in violation of this Agreement. Any such lawsuit, judicial action, or similar proceeding is hereafter referred to as a “Company Claim.”

8.2. Should MiLo or the Documentation become, or in Company’s opinion be likely to become, the subject of a Company Claim, Company may, at its expense, but without obligation to do so, undertake further actions such as: procuring for Subscriber such right(s) as may be necessary to resolve the Company Claim, replacing or modifying MiLo and/or its Documentation to render it non-infringing without material reduction to its functionality (in which case the Subscriber shall immediately cease use of the allegedly infringing version of MiLo and/or Documentation), or terminating Subscriber’s Subscription (upon which event Subscriber shall cease all use of MiLo and its Documentation) and refunding to Subscriber a pro-rated portion of any pre-paid Fees for Subscription access to MiLo for the period after the effective date of termination. THIS SECTION STATES THE ENTIRE LIABILITY OF COMPANY, AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO THE INFRINGEMENT OF ANY COPYRIGHTS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS RELATED TO THE MiLo OR DOCUMENTATION, OR THEIR USE.

8.3. Subscriber agrees to defend, indemnify, and hold harmless Company at Subscriber’s expense in a lawsuit, judicial action, or similar proceeding brought against Company by a third party, and pay the amount of any adverse final judgment (or settlement to which Subscriber consents) from such lawsuit, judicial action, or similar proceeding, with respect to any third party claim(s) arising from or relating to (i) the Subscriber Data (including, without limitation, any inaccurate data input into MiLo by Subscriber or its Representatives), (ii) Subscriber’s or its Representatives’ use of MiLo in a manner contrary to its Documentation or in violation of this Agreement; (iii) any loss of containment or other hazards, and any death, personal injury, environmental damage, or other damages or liabilities resulting therefrom, unless a court of competent jurisdiction finally determines that such loss of containment or hazards was solely and directly caused by Company’s gross negligence or willful misconduct; or (iv) Subscriber’s actions or omissions to the extent based upon its use of MiLo, Outputs, and/or Visualizations.

8.4. As an express condition to the indemnifying party’s obligations hereunder, the indemnified party must: (i) promptly notify the indemnifying party in writing of the claim, provided, however, that any delay in providing such notice shall not relieve the indemnifying party of any of its obligations which are not materially prejudiced by that delay; (ii) grant the indemnifying party sole control of the defense and settlement of the claim; and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. In no event shall the indemnifying party enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of the indemnified party, that contains an admission of liability or wrongdoing on the part of the indemnified party, otherwise prejudices the rights of the indemnified party, or imposes a material obligation on the indemnified party that is not wholly discharged by the indemnifying party. In addition, the indemnified party shall take, and permit the indemnifying party to take, reasonable actions to mitigate the injury(ies) alleged by the third-party claimant.

9. LIMITATION OF LIABILITY

9.1 EXCLUDING A PARTY’S OBLIGATIONS UNDER SECTION 8, SUBSCRIBER’S BREACH OF SECTION 2, SUBSCRIBER’S BREACH OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, AND EITHER PARTY’S INTENTIONAL BREACH OF SECTIONS 6.1 OR 6.2, NEITHER PARTY (INCLUDING ANY OF ITS RESPECTIVE REPRESENTATIVES) SHALL BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, LOST DATA, GOODWILL, PRODUCTION, USE, OR USE OF CAPITAL, BUSINESS INTERRUPTION, OVERHEAD COSTS, OTHER INTANGIBLE LOSSES, AND DAMAGES ARISING OUT OF COMMITMENTS TO SUBCONTRACTORS OR PERSONAL SERVICE CONTRACTS. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT IT IS IMPOSSIBLE FOR ANY TECHNOLOGY SUCH AS THE MiLo TO IDENTIFY, DETECT, OR PREVENT ALL PROBLEMS, DAMAGE AND/OR VULNERABILITIES, INCLUDING DEFECTS OR UNEXPECTED CONDITIONS IN TERRAIN, FACILITIES OR INFRASTRUCTURE, AND THAT, ACCORDINGLY, COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE, DAMAGE TO, OR LOSS OF USE OF SUBSCRIBER’S FACILITIES OR INFRASTRUCTURE DUE TO THE FAILURE OF COMPANY OR ANY SERVICE TO IDENTIFY, DETECT, OR PREVENT ANY SUCH PROBLEMS, DAMAGE OR VULNERABILITIES. THE FOREGOING EXCLUSIONS SHALL APPLY EVEN IF THE LIABLE PARTY WAS AWARE OF, OR HAS BEEN ADVISED OF, THE POSSIBILITY OF SUCH DAMAGES.

9.2 EXCLUDING A PARTY’S OBLIGATIONS UNDER SECTION 8, SUBSCRIBER’S BREACH OF SECTION 2, EITHER PARTY’S INTENTIONAL BREACH OF SECTIONS 6.1 OR 6.2, SUBSCRIBER’S BREACH OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, AND SUBSCRIBER’S OBLIGATIONS TO PAY AMOUNTS OWED HEREUNDER, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY, IF ANY, ARISING OUT OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR ARISING FROM AN EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, OR STRICT OR PRODUCT LIABILITY, SHALL BE LIMITED TO THE AMOUNT EQUAL TO THE FEES PAID BY SUBSCRIBER TO LICENSOR HEREUNDER FOR THE SERVICE IDENTIFIED IN THE ORDER FORM IN CONNECTION WITH WHICH THE CLAIM AROSE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE LATEST CLAIM.

9.3 THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. Term, Modification and Termination

10.1 The term of this Agreement shall commence upon the date that Subscriber accepts this Agreement (the “Effective Date”) and shall continue unless terminated as provided herein. Each Order Form will commence on the effective date set forth in the Order Form and shall continue for a period of twelve (12) months or such other period as is specified in the Order Form (“Initial Term”). At the end of the Initial Term, the Order Form shall automatically renew for additional, successive one (1) year periods (each, a “Renewal Term” and the Initial Term and all Renewal Terms, collectively the “Term”), at Company’s then-current pricing for the Services, unless one party notifies the other in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current term.

10.2 Either party (the “Non-Breaching Party”) may terminate this Agreement if the other party (the “Breaching Party”) commits a material breach of any of its obligations hereunder and, where the breach is capable of being cured, the Breaching Party fails to remedy such breach within thirty (30) days of receiving written notice of such breach from the Non-Breaching Party. Any Subscriber use of MiLo and/or its Documentation in a manner not expressly authorized by Section 2.1, and any breaches of confidentiality obligations, shall be deemed to be incapable of being cured, and in such event this Agreement shall be terminable by Company upon written notice to Subscriber.

10.3 Upon the termination of this Agreement, (i) the relevant Subscription(s) shall be terminated, (ii) Subscriber shall refrain from making any further use of Documentation supplied to it under this Agreement, (iii) Subscriber shall promptly pay any amounts due Company for Services provided and access granted prior to the effective date of the termination, (iv) Company shall make the Subscriber Data available for retrieval for a period of no more than thirty (30) days; and (v) at the disclosing party’s election, the receiving party shall either return to the disclosing party all disclosing party Confidential Information in the receiving party’s possession or the possession of any of its Affiliates or Representatives (and all documents, printed, electronic or otherwise, which contain or summarize Confidential Information) or destroy all such information and documents and certify to the disclosing party in writing the completion of such destruction; provided, however, that (a) the receiving party shall not be required to delete electronic copies retained in accordance with its document retention policy or stored in backups and archives that are not generally available to the individual user on the condition that (i) the receiving party shall not attempt to access such backup or archived material for any business or competitive purpose, and (ii) such electronic copies (if any) remain subject to the terms of this Agreement; and (b) Company may also retain an archival copy of Subscriber Data which are set forth in Subscriber testing and inspection records in accordance with Company’s document retention policy.

10.4 In addition to those provisions which by their nature are intended to survive any termination or expiration of this Agreement, Sections 2, 4 (until all fees due thereunder have been paid), 5, 6, 7.3, 8, 9, 10.3, and 14 – 25 of this Agreement, and this Section 10.4 shall survive the expiration or termination of this Agreement.

11. Force Majeure

Except for performance of Subscriber’s payment obligations hereunder, neither party shall be considered in default in performance of its obligations should the execution thereof be delayed by Force Majeure. “Force Majeure” means an event that is beyond the reasonable control and without the fault or negligence of the affected party which prevents such party from performing its obligations hereunder in a timely manner, including, but not be limited to, hostilities, restraint of rulers or peoples, revolution, civil commotion or riots, strike, epidemic, fire, flood, earthquake, explosion, lack of or failure of transportation facilities, third-party hacking and other criminal or malicious activities, failures of third-party hardware, software or networks (including any cloud hosting service used by Company), any law, proclamation, regulation or ordinance, demand or requirement of any government or governmental agency having or claiming to have jurisdiction over the work or over the parties hereto or any act of God or any act of government. For the avoidance of doubt, Force Majeure events do not include economic hardship, changes in market conditions, and/or insufficiency of funds, including to the extent caused by or resulting from any of the circumstances described in this section.

12. Designated Representatives

Subscriber and Company shall each identify a suitably qualified representative on the relevant Order Form who shall be its primary contact for all day-to-day matters pertaining to training and support for MiLo governed by such Order Form. Such individuals shall not be authorized to enter into legally binding agreements on behalf of his or her employer. These designated representatives and their contact information may be changed by written notice to the other party (email sufficing).

13. Export Regulations

With regard to MiLo, its Documentation, and other information received from Company under this Agreement and the direct product thereof, Subscriber agrees to comply with the laws and regulations of the United States relating to the export and re-export of technical data, equipment and other products that were produced in the United States, and, without limiting the generality of the foregoing, is responsible for obtaining any rights or authorizations and paying all taxes, duties and other charges that may be required for such export and re-export. Subscriber acknowledges that it is aware that those laws and regulations place legally enforceable end use and destination restrictions on various items.

14. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to con-flict of laws principles and excluding application of the United Nations Convention on Contracts for the International Sale of Goods, except that U.S. federal law shall govern in matters of intellectual property.

Venue over all disputes arising under or related to the formation, interpretation, application, or performance of this Agreement shall be exclusively in the state and federal courts within the State of Colorado, except that a party may seek emergency injunctive or other equitable relief in any court of competent jurisdiction to protect its rights in its Confidential Information or intellectual property. Each party hereby consents to the exercise of jurisdiction and venue by such courts and waives any claims or defenses relating to inconvenient forum.

15. Successors and Assigns

This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Subscriber may not assign this Agreement or the access granted hereunder without the prior written consent of Company. Any assignment attempted in violation of the previous sentence shall be null and void. Company may assign this Agreement without consent to (i) an Affiliate, or (ii) any successor-in-interest to all or substantially all of the assets of the business unit of Company to which this Agreement relates, whether by operation of law or by merger, sale of assets, sale of stock, combination, reorganization or other similar transaction. Company may also, without notice, utilize subcontractors and agents (including Affiliates) to perform aspects of the Services, provided, however, that, except as provided in Section 9.3, Company shall remain primarily responsible for compliance with its obligations under this Agreement.

16. Notices

Any notices or consents required or permitted by this Agreement will be in writing. Except where this Agreement expressly permits email notices, all notices to Company shall be delivered in person or by registered or certified mail, postage prepaid, return receipt requested, or by a reputable courier delivery service, and shall be deemed given upon receipt. Notices to Company shall be sent to the attention of Sarah Compton at Compton Integrated Analytics, LLC, 20231 Maxwell Drive Morrison, CO (or such different address as Company specifies in writing). All notices to Subscriber shall be sent to the then-current e-mail address associated with Subscrib-er’s account, and all notices shall be deemed received upon transmission, absent Company’s receipt of an e-mail bounce-back notice specifying that the e-mail is undeliverable.

17. No Third-Party Beneficiaries

The parties intend that there shall be no third-party beneficiaries with respect to this Agreement. Accordingly, this Agreement inures only to the benefit of, and is binding only upon, the parties and their respective successors and permitted assigns, and does not con-fer any right or privilege upon any third party.

18. Entire Agreement; Modifications

This Agreement supersedes all previous agreements, whether oral or written, with respect to the Services provided pursuant to Or-der Forms governed by this Agreement. Company reserves the right to modify this Agreement for any reason. Subscriber should regularly look at this Agreement and the “Last Updated” date at the beginning of these General Terms. Company will use reasonable efforts to give Subscriber notice of these modifications, such as posting notice of modifications on the web page for MiLo or by e-mailing Subscriber at the then-current email address associated with its account. Subscriber agrees that it will be subject to the modi-fied Agreement with respect to Order Forms entered into on or after the date of the modification; however, Company will not apply modifications to the Agreement retroactively to Order Forms entered into before the date of the modification unless Subscriber af-firmatively consents to the same. If Subscriber does not agree to the terms of the Agreement as modified pursuant to this paragraph, Subscriber must not enter into any new Order Forms after the applicable “Last Updated” date. Except as otherwise expressly provid-ed in this Section 18, no modifications to this Agreement or any Order Form shall be valid unless made in writing and signed by a duly authorized representative of each party. Any preprinted or hyperlinked terms of Subscriber referenced in any Subscriber purchase order or other Subscriber-provided document will not be binding on Company, will have no force or effect on the terms of the Agreement, and are hereby expressly rejected.

19. Injunctive Relief

Each party acknowledges that its breach of Sections 2 or 6 of this Agreement will cause the other party immediate and irreparable damage for which recovery of money damages would be inadequate. Therefore, each party agrees that the other party shall be enti-tled to injunctive relief to protect its rights under Sections 2 and 6 of this Agreement (in addition to any other remedies available to said party) without the necessity of posting bond.

20. Publicity

Neither party may use the other party’s name, trademarks, or logos in promotional materials or press releases without the other par-ty’s prior written consent; however, Company may refer to Subscriber as a customer or user of MiLo on Company’s website and in other marketing literature.

21. Restrictive Covenants

Subscriber hereby expressly understands and acknowledges that Company provides Services to a wide array of companies, including other companies in Subscriber’s industry. Therefore, (1) Company shall at all times retain the right and ability to freely provide its Services (including, without limitation, the same Services provided to Subscriber hereunder) to any third parties, including, without limitation, to competitors of Subscriber, and (2) Company shall not be obligated to determine pricing for the Services it provides to Subscriber based on the prices Company charges to third parties.

22. Order of Precedence

In the event of any inconsistencies between these General Terms and any Order Form, the conflict shall be resolved in the following order of priority (from most precedential to least precedential): (1) Order Form, (2) and (2) General Terms.

23. Severability

If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted, if possible, to accomplish the intent of the provision within the constraints of the law. Only that provision that is deemed unenforceable or invalid, and not the entire Agreement, shall be invalidated.

24. Waiver

If one party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time.