TERMS AND CONDITIONS OF SALE JACOBUS ENERGY, LLC (“Company”)

Rev. January 25, 2019

  1. Products and Services. Subject to these terms and conditions of sale (these “Terms and Conditions”), Company will provide to you (“Customer”) fuel and related products (the “Products”) and related services (the “Services”) as mutually agreed upon by Company and Customer. Customer agrees to provide to Company all documents and information that Company deems reasonably necessary to provide the Products and the Services and may reasonably request from time to time.
  2. Payments. Except as otherwise provided in an agreement signed by Company, Customer shall pay Company the amounts invoiced for the Products and Services within ten (10) days from the date of such invoice. If Customer fails to pay Company all amounts invoiced in accordance herewith, Company, in its sole discretion and in addition other rights and remedies available to it, may assess against Customer interest on the outstanding principal balance due to Company, calculated at the rate of one percent (1%) per month, or at the highest rate of interest allowed by law, whichever is less, until the outstanding principal balance due to Company is paid in full.
  3. Compliance with Legal Requirements. Company and Customer each shall comply with all applicable federal, state and local laws, ordinances, rules and regulations to the extent the same govern or affect the use, transport, dispense, storage, handling, release and labeling, as applicable, of the Products and the Services. Company may decline to deliver the Products into any transportation or storage equipment of Customer that is reasonably determined by Company to not be in compliance with any applicable federal, state and local law, ordinance, rule and regulation. In the event Company so declines, Company shall bear no liability to Customer whatsoever.
  4. Insurance. During the term of the business relationship of the parties, each of the parties shall procure and maintain insurance coverage in such amounts as is usual and customary for the industry in which such party operates. Each of the parties shall provide the other party at least ten (10) days’ prior written notice of cancellation, termination, expiration or lapse thereof.
  5. Proprietary Rights; Confidential Information.
    (a) License. During the Term, Company grants to Customer a non-exclusive, limited license to use Company’s website and/or QuickNet® customer portal for their intended purpose, subject to the terms and conditions of use and privacy policy set forth on the website and/or the QuickNet customer portal. Customer acknowledges that it holds no right, title or interest in the website or the QuickNet customer portal and agrees not to challenge the validity or enforceability of Company’s rights therein or the Company’s ownership thereof and agrees not to copy, distribute or otherwise share the website or the QuickNet customer portal with any third party.
    (b) Proprietary Rights. Customer acknowledges Company’s exclusive rights as owner in all copyrights, trademarks, service marks, trade names, trade dress and other intellectual property rights relating to the Products and the Services (collectively, the “Rights”). Customer further acknowledges that it has no right, title or interest in the Rights and agrees not to challenge the validity or enforceability of the Rights or their ownership by Company.
    (c) Confidential Information. The term “Confidential Information” shall mean all non-Trade Secret (as hereinafter defined) information of, about or related to the disclosing party or provided to the disclosing party by its customers that are not known generally to the public or the disclosing party’s competitors. The term “Trade Secret” shall have the meaning set forth under applicable law. No Trade Secret shall be used or disclosed, directly or indirectly, by the receiving party. No Confidential Information shall be used, directly or indirectly, by the receiving party for any purpose other than in accordance with these Terms and Conditions. No Confidential Information shall be disclosed to any person other than the receiving party’s employees or authorized representatives who have a need to know such Confidential Information to provide the Products and the Services and who are subject to a non-disclosure obligation comparable in scope to this Paragraph 5(c). The receiving party shall be responsible for any breach by its employees and/or representatives of the non-disclosure obligations hereunder. Nothing herein shall be construed to limit or supersede any statutory or other protection of Trade Secrets. Confidential Information will not include, and the obligations set forth herein shall not apply to, any information which: (i) is, or becomes, generally available to the public without breach hereof; (ii) becomes available to the receiving party in good faith from a third party who discloses such information without violating any obligation of confidentiality or secrecy relating to the information disclosed; or (iii) is independently developed by the receiving party without use of any Confidential Information. Nothing herein will be construed to prohibit Company’s use, for any purpose, of statistical information or data obtained during the provision of the Products and the Services, as long as such statistical information or data are not identifiably relating solely to Customer.
    (d) Injunctive Relief. Each party agrees that money damages may not be an adequate remedy in the event of any breach by it, its employees and/or representatives of the provisions of Paragraph 5 hereof, and that the other party shall be entitled to seek equitable relief, including injunction and specific performance, in addition to all other remedies available to such other party at law or in equity or hereunder.
  6. Termination.
    (a) Termination Upon Material Breach. Except as provided in Paragraph 6(b), below, and subject to Paragraph 6(d), below, in the event of a material breach of these Terms and Conditions, the non-breaching party may terminate the Services without further liability to the non-breaching party (other than to make payments hereunder) upon at least thirty (30) days’ prior written notice of termination to the other party (said notice to be given within thirty (30) days of the first instance of such material breach otherwise all instances of such material breach shall be deemed waived by the non-breaching party, and to describe, with as much particularity as possible, the alleged material breach); provided, however, that upon cure of the alleged breach within thirty (30) days from the date of notice, the non-breaching party’s right of termination for the breach alleged will expire and its notice of termination will be null and void. In the event that a cure requires more than thirty (30) days to complete, it will be deemed sufficient if the party against whom breach is alleged promptly and diligently pursues a cure and immediately gives written notice to the non-breaching party of the cure being implemented and the expected date by which the cure will be complete; provided, however, that unless the notice of termination is waived in writing by the non-breaching party, an alleged breach must be cured within one-hundred twenty (120) days from the date of the original notice of breach or the Services shall terminate.
    (b) Failure to Make Payment. Subject to Paragraph 6(d), below, if Customer fails to pay any of the amounts when due Company, Company, in its sole discretion, without liability to Company, immediately may terminate the Services or suspend performance of the Services until all past-due amounts and interest accrued thereon have been paid to Company. Following receipt by Company of all past-due amounts and interest accrued thereon, Company will have a reasonable period in which to determine whether to reinstate performance of the Services. In the event Company determines not to reinstate performance of the Services, Company shall bear no liability to Customer whatsoever.
    (c) Upon Insolvency. Notwithstanding Paragraph 6(b), above, and subject to Paragraph 6(d), below, either party may terminate the Services without further liability, immediately upon written notice to the other party in the event the other party: (i) becomes insolvent or takes or fails to take any action which constitutes an admission of inability to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, files a petition in bankruptcy, petition or applies to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial portion of its assets, (iii) commences any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, (iv) has filed against it any such petition or application in which an order for relief is entered or which remains undismissed for a period of sixty (60) days or more, or (v) indicates its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of custodian, receiver or trustee for itself or a substantial portion of its assets, or suffers any such custodianship, receivership or trusteeship to continue undischarged for a period of sixty (60) days or more.
    (d) Consequences of Termination. Upon termination of the Services, for any reason, Customer shall pay Company for all Products and Services provided by Company. Notwithstanding anything to the contrary contained herein, either party’s right to terminate the Services is in addition to, and not exclusive of, all other remedies available to such party at law or in equity.
  7. ​Indemnification; Limited Warranty; Disclaimer and Limitation of Liability
    (a) Indemnity. To the fullest extent permitted by law, and subject to the limitations provided in Paragraph 7(d), below, each party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party, its affiliates and their officers, employees, agents and representatives (the “Indemnified Party”) from and against any and all losses, liabilities, claims, suits, judgments, damages, costs and expenses, including reasonable attorneys’ fees and costs associated therewith, which may accrue against, be charged to, incurred by, or be recoverable from, the Indemnified Party relating to, arising out of, or resulting from any negligence of the Indemnifying Party, its officers, employees, agents, representatives and invitees. Prompt notice in writing of any claim made or suit initiated for which indemnification may be sought under this Paragraph 7(a) must be given by the party seeking indemnification to the Indemnifying Party. The Indemnifying Party will have the right to participate in the defense and settlement of every such claim or suit to the extent of its own interest.
    (b) Limited Warranty. Company warrants that: (i) the Products delivered shall meet the specifications therefor as required by applicable law or regulation; and (ii) title to the Products delivered is free and clear of all security interests, liens, claims, charges or encumbrances. In the event of any alleged breach of this limited warranty, Customer shall notify Company in writing within fifteen (15) days of transfer of title of the Product, and any claim shall be deemed waived by Customer if not made in writing within such fifteen (15) days. Title transfers when the Product passes out of the nozzle of the Company’s (or its subcontractors’) delivery vehicle or equipment. Notwithstanding anything contained in these Terms and Conditions to the contrary, the sole and exclusive remedy of Customer under this limited warranty shall be replacement of the Products without charge to Customer. This limited warranty shall be void and unenforceable, and Company shall have no obligation to Customer under this limited warranty, in the event Customer: (i) uses, combines or comingles the Products with other products; or (ii) fails to comply with all applicable federal, state and local laws, ordinances, rules and regulations regarding the use, transport, dispense, storage and handling, as applicable, of the Products.
    (c) Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND CUSTOMER AGREE THAT THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 7(b), ABOVE, IS THE EXCLUSIVE WARRANTY GIVEN BY COMPANY AND COMPANY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL IMPLIED WARRANTIES FOR THE PRODUCTS AND THE SERVICES SOLD, DELIVERED OR USED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR INTENDED USE OR FOR A PARTICULAR PURPOSE. NO REPRESENTATION, WARRANTY OR OTHER AFFIRMATION OF FACT, WHETHER MADE BY COMPANY OR OTHERWISE WILL BE DEEMED TO BE A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF COMPANY. EACH PARTY ALSO WAIVES ANY LIABILITY OF THE OTHER PARTY IN NEGLIGENCE, TORT AND STRICT LIABILITY ARISING FROM ANY ACT OR OMISSION OF THE OTHER PARTY IN THE PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, EXCEPT AND TO THE EXTENT THAT SUCH LIABILITY IS EXPRESSLY PROVIDED FOR HEREIN.
    ​(d) Limitation of Damages. A PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUES, LOST PROFITS OR LOST PROSPECTIVE ECONOMIC ADVANTAGE ARISING FROM ANY ACT OR OMISSION IN PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, EVEN IF THE PARTY AT FAULT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF, AND EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIM AGAINST THE OTHER PARTY REGARDING SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY IN CONNECTION WITH THE PRODUCTS AND THE SERVICES PROVIDED HEREUNDER EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO COMPANY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST DATE ON WHICH THE CIRCUMSTANCES RESULTING IN DAMAGES OCCURRED.
  8. Force Majeure. Except for any obligation to make payments hereunder, each party will be excused from performing its obligations hereunder to the extent that such failure is caused by a strike, labor dispute, riot, rebellion, insurrection, invasion, war, action or interference of government, regulatory, administrative or judicial authorities, acts of God or any other cause (whether similar or dissimilar to the foregoing) which is beyond the control of such party. The party which is unable to perform its obligations hereunder will use commercially reasonable efforts to remove such cause of non-performance; upon removal thereof, such party will resume within a reasonable period the performance of its obligations hereunder. In the event Company experiences reductions in the supply of the Products, Company may reduce the volume of the Product to be provided without breach of its obligations hereunder or liability to Customer.
  9. Independent Contractor. The relationship between Company and Customer will be that of independent contractors for all purposes, and in no event shall persons employed by either party be held or construed to be employees of the other. Each of Company and Customer will be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including, withholding of appropriate payroll taxes), workers compensation, disability benefits and the like.
  10. Subcontractors. Company may engage subcontractors to provide, in whole or in part, any of the Products or the Services hereunder.
  11. Entire Agreement. These Terms and Conditions constitute the entire agreement between Company and Customer concerning the subject matter hereof and supersedes all prior communications, representations, warranties and covenants (whether oral or written) between Company and Customer concerning the subject matter hereof. None of these Terms and Conditions may be added to, modified, superseded or otherwise altered except by a written agreement signed by authorized signatories of Company and Customer. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ANY TERMS AND CONDITIONS APPEARING ON ANY AGREEMENT, DOCUMENT OR INSTRUMENT OF CUSTOMER, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER, ACKNOWLEDGMENT OR WEBSITE OF CUSTOMER, ARE REJECTED IN THEIR ENTIRETY BY COMPANY AND CUSTOMER AND SHALL HAVE NO EFFECT ON THESE TERMS AND CONDITIONS.
  12. Miscellaneous. The provisions of these Terms and Conditions concerning warranties, indemnities, proprietary rights, confidentiality, governing law and jurisdiction shall remain in effect after the expiration or termination of Services. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors and assigns. Customer may not assign or otherwise transfer its rights, interests or obligations under these Terms and Conditions without the prior written consent of Company (which consent may be withheld in Company’s reasonable discretion). Except as otherwise provided for hereunder, no waiver of any term, provision or condition of these Terms and Conditions whether by conduct or otherwise, in any one or more instances, shall be construed as a further or continuing waiver of any such term, provision or condition. Company and Customer agree that, if any provision of these Terms and Conditions shall, under any circumstances, be deemed invalid or inoperative, these Terms and Conditions shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of Company and Customer shall be construed and enforced accordingly.
  13. Governing Law; Jurisdiction. THESE TERMS AND CONDITIONS AND THE PROVISION OF THE PRODUCTS AND PERFORMANCE OF THE SERVICES AND ALL DISPUTES ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. EACH OF COMPANY AND CUSTOMER CONSENTS TO THE EXCLUSIVE JURISDICTION OF FEDERAL AND STATE COURTS LOCATED IN THE STATE OF WISCONSIN, COUNTY OF MILWAUKEE, IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.

TERMS AND CONDITIONS OF EQUIPMENT LEASE JACOBUS ENERGY, LLC (“Company”)

Rev. January 9, 2019

  1. Equipment. All equipment (“Equipment”) leased to you (“Customer”) by Jacobus Energy, LLC (“Company”) is subject to these terms and conditions (these “Terms and Conditions”). Customer shall keep the Equipment at the location where Company delivers same (the “Location”), and shall not remove the Equipment from the Location without the prior written consent of Company, which may be withheld in Company’s sole discretion.
  2. Term. The lease granted hereby (“Lease”) may be terminated by either party for any reason upon thirty (30) days’ written notice to the other party. Upon termination of the Lease, Customer’s right to possession and use of the Equipment shall terminate and Company shall take possession of the Equipment and for the purpose thereof may enter the premises on which the Equipment is located without court order or other process of law (damages occasioned by such taking being hereby expressly waived by Customer).
  3. Obligation to Purchase Fuel. During the term of the Lease, Customer acknowledges and agrees that Customer shall purchase from Company one hundred percent (100%) of the fuel to be delivered to the Equipment. In the event Customer purchases fuel from a supplier other than Company, or causes fuel to be delivered to the Equipment from a source other than Company, Company may immediately terminate the Lease and remove the Equipment and for the purpose thereof may enter the premises on which the Equipment is located without court order or other process of law (damages occasioned by such taking being hereby expressly waived by Customer).
  4. Delivery / Retrieval Fees. Customer shall pay Company fees for the delivery and retrieval of the Equipment to and from the Location.
  5. Installation, Repairs, Alterations. Customer shall be responsible for expenses incident to the use, maintenance and repair of the Equipment. Customer shall keep and maintain the Equipment in good and working order. All replacement parts and accessories required to maintain the Equipment in good working condition shall become the property of Company and shall be deemed to be a part of the Equipment. Customer shall not, without the prior written consent of Company, make any alterations, modifications, additions, subtractions or improvements to the Equipment, but if so consented to by Company, any such alterations, modifications, additions or improvements shall be performed by persons authorized by Company and shall become the property of Company and be deemed to be a part of the Equipment. If Customer requests Company to make any alterations, modifications, additions, subtractions or improvements to the Equipment, Company will do so at its standard hourly rate therefor, plus all costs and expenses.
  6. Use. Customer shall use the Equipment solely for its intended purpose; shall permit the Equipment to be operated only by competent and qualified personnel; shall use reasonable care in operating and using the Equipment; shall operate the Equipment in accordance with Company’s guidelines therefor; and shall comply with all applicable laws, ordinances and regulations, including, without limitation, those relating to the possession, use or maintenance of the Equipment. Customer shall not sublet, mortgage, pledge, sell or otherwise encumber or dispose of the Equipment.
  7. Right of Inspection. Company, with reasonable advance notice, shall have the right to enter into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use. Customer shall promptly advise Company of any circumstances which may in any manner affect the Equipment or in any manner affect Company’s title thereto.
  8. Title. Title to the Equipment shall remain with Company at all times and Customer shall have no right, title or interest in the Equipment except as expressly set forth herein. If directed by Company, Customer shall affix to the Equipment in a prominent place and maintain thereon any labels, plates or other identifying markings indicating that the Equipment is the property of Company. The Lease is intended by the parties to be a lease and not a security agreement subject to Article 9 of the Uniform Commercial Code. However, in the event the Lease or any part thereof is determined to be a security agreement and the underlying transaction is determined to be something other than a lease, including, without limitation, a sale to Customer, Customer hereby grants Company a purchase money security interest in the Equipment, and all additions and accessions thereto and proceeds and products thereof as defined in Article 9 of the Uniform Commercial Code as it may be amended, reenacted or otherwise in effect from time to time, and hereby authorizes Company, at Customer’s expense, to cause these Terms and Conditions, or any statement or other instrument showing the interest of Company in the Equipment, including Uniform Commercial Code Financing Statements, to be filed or recorded and, to the extent necessary, refiled and re-recorded.
  9. Insurance. Customer, at its expense, shall keep the Equipment insured against such risks as are normally covered by an “all-risk” fire and extended coverage insurance policy, in an amount not less than the replacement value of the Equipment. Company shall be named as an additional insured on such insurance policy. Such insurance policy shall be from an insurance company that is reasonably acceptable to Company and shall not be canceled or modified without thirty (30) days prior written notice to Company. A certificate evidencing the existence thereof shall be promptly delivered to Company prior to delivery of the Equipment and upon any renewal of such policy. The insurance provisions hereof shall not be construed to limit the obligations of Customer under Paragraph 10 or 12, below.
  10. Loss and Damage; Return. Until the Equipment is returned to Company’s premises, Customer shall bear the entire risk of loss, theft, damage or destruction of the Equipment and fuel contained therein from any cause whatsoever, and no loss, theft, damage or destruction of the Equipment shall relieve Customer of any obligation hereunder or the obligation to pay for the fuel. Customer shall promptly notify Company in writing of any loss or theft, and shall immediately remit payment to Company for the replacement value thereof and the fuel contained therein. Customer shall promptly notify Company in writing of any damage or destruction of the Equipment and shall immediately place the same in good repair in accordance with the terms hereof. Upon the termination of the Lease, Customer shall return the Equipment to Company, at its expense, in as good a condition as when received, considering normal wear and tear, and free and clear of all encumbrances.
  11. No Warranty. Company makes no warranty with respect to the Equipment; the Equipment is provided AS IS WHERE IS. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR DAMAGES HEREUNDER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST SALES OR LOST TIME.
  12. Indemnification. Customer shall indemnify and hold harmless Company, its affiliates and their officers, directors, employees and agents from and against any loss, damage, cost or expense (including attorneys’ fees) of any kind or nature, direct or consequential, occasioned directly or indirectly, insured or uninsured, arising out of or in connection with (i) Customer’s breach of these Terms and Conditions; (ii) any bodily injury, death, disability, property damage, or environmental liability, directly or indirectly, arising from or in connection with the Equipment or the fuel delivered or stored therein, including, without limitation, the lease, possession, use, operation, maintenance (or any delay or failure to provide maintenance) or return of the Equipment, or any act or omission of Customer with respect to the Equipment; or (iii) any loss or loss of use, theft or or damage or destruction to the Equipment or fuel, or loss of business of Company, directly or indirectly, arising therefrom or in connection therewith.
  13. Independent Contractor. The relationship between Company and Customer will be that of independent contractors for all purposes, and in no event shall persons employed by either party be held or construed to be employees of the other. Each of Company and Customer will be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including, withholding of appropriate payroll taxes), workers compensation, disability benefits and the like.
  14. Entire Agreement. These Terms and Conditions constitute the entire agreement between Company and Customer concerning the subject matter hereof and supersedes all prior communications, representations, warranties and covenants (whether oral or written) between Company and Customer concerning the subject matter hereof. None of these Terms and Conditions may be added to, modified, superseded or otherwise altered except by a written agreement signed by authorized signatories of Company and Customer. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ANY TERMS AND CONDITIONS APPEARING ON ANY AGREEMENT, DOCUMENT OR INSTRUMENT OF CUSTOMER, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER, ACKNOWLEDGMENT OR WEBSITE OF CUSTOMER, ARE REJECTED IN THEIR ENTIRETY BY COMPANY AND CUSTOMER AND SHALL HAVE NO EFFECT ON THESE TERMS AND CONDITIONS.
  15. Miscellaneous. The provisions of these Terms and Conditions concerning warranties, indemnities, governing law and jurisdiction shall survive the termination of the Lease. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. Customer may not assign or otherwise transfer its rights, interests or obligations under these Terms and Conditions. Except as otherwise provided for hereunder, no waiver of any term, provision or condition of these Terms and Conditions whether by conduct or otherwise, in any one or more instances, shall be construed as a further or continuing waiver of any such term, provision or condition. Company and Customer agree that, if any provision of these Terms and Conditions shall, under any circumstances, be deemed invalid or inoperative, these Terms and Conditions shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of Company and Customer shall be construed and enforced accordingly.
  16. Governing Law; Jurisdiction. THESE TERMS AND CONDITIONS AND THE LEASING OF THE EQUIPMENT AND ALL DISPUTES ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. EACH OF COMPANY AND CUSTOMER CONSENTS TO THE EXCLUSIVE JURISDICTION OF FEDERAL AND STATE COURTS LOCATED IN THE STATE OF WISCONSIN, COUNTY OF MILWAUKEE, IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.

Terms and Conditions of Use

JACOBUS ENERGY, LLC
Modified: February 11, 2019

ACCEPTANCE OF THESE TERMS OF USE
These terms of use (“Terms of Use”) are entered into by and between you and Jacobus Energy, LLC (“Jacobus,” “we,” “our” or “us”). These Terms of Use govern your access to and use of any affiliated website that contains a link to these Terms of Use (the “Sites”) including any content, functionality, services and products offered on or through the Sites and any mobile app that links to these Terms of Use (the “App”) (collectively, the “Services”).

Please read these Terms of Use carefully before you start to use the Services. By using the Services, you accept and agree to be bound and abide by these Terms of Use. If you do not agree with these Terms of Use and the privacy policy (“Privacy Policy”), you must not access or use the Services.

The Services are only offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are of legal age to accept these Terms of Use as a binding contract with Jacobus and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.

CHANGES TO THESE TERMS OF USE
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set out in the “GOVERNING LAW AND JURISDICTION” section will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Services.

Your continued use of the Services following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. Additionally, when we make a material change to these Terms of Use, we will post a notice on the Services.

TERMINATION/EXCLUSION
You understand that the Services are provided as a courtesy to you and that we may modify, suspend, or terminate all or a portion of the Services at any time in our discretion without prior notice to you. We reserve the right, in our sole discretion, to revoke, terminate, or suspend any privileges associated with use of the Services or failure to comply with these Terms of Use, and to take any other action we deem appropriate. You agree that Jacobus shall not be liable to you or any third party for any termination of your access to the Services.

YOUR ACCESS AND USE OF THE SERVICES AND YOUR ACCOUNT(S)
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use the Services for lawful purposes and pursuant to the terms and conditions of these Terms of Use and the Privacy Policy. When using the Services, you must ensure that you are using a secure server.

Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that Jacobus, in its sole discretion, may elect to take.

You Must Maintain the Integrity of Your Information. To use the Services, you may be required to provide Jacobus with information about you or your organization, if you have proper authorization to do so (“Personal Information”). If you provide Personal Information to Jacobus, then you agree to provide true, current, complete, and accurate information, and to not misrepresent your identity. You also agree to keep Personal Information current, and to update your Personal Information if any of it changes. Jacobus’ collection, use, and disclosure of Personal Information are governed by these Terms of Use and its Privacy Policy.

You Must Maintain the Security of Any Password Issued to You. Access to the Services may be account-based. To access and/or use the Services, you may be required to register an account and create a password or log in to an account created for you. It is your responsibility to maintain the security of passwords and log-in information, prevent access to the Services by unauthorized persons and immediately change any password provided to you by a third party. If you provide any information that is untrue, inaccurate, outdated or incomplete, or Jacobus has reasonable grounds to suspect that such information is untrue, inaccurate, outdated or incomplete, Jacobus has the right to suspend or terminate your account and refuse any and all current or future use of the Services or any portion thereof. You agree that Jacobus shall not be liable for any loss that you may suffer as a result of the authorized or unauthorized use of your password or account.

INTELLECTUAL PROPERTY RIGHTS
The Services and their entire contents, features, and functionality including, but not limited to, all information, software, text, displays, images, video, audio, and the design, selection, and arrangement thereof are owned by Jacobus, its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any the material on our Services, except as follows:

  • Your computer may temporarily store copies of such material in RAM incidental to your accessing and viewing those materials;
  • You may store files that are automatically cached by your web browser for display enhancement purposes;
  • By prior express written consent of Jacobus; or
  • Reports generated by the QuickNet ® Online Customer Portal specific to your account(s).

If you print, copy, modify, download, use, or provide any other person with access to any part of the Services in breach of the Terms of Use, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Jacobus. Any use of the Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

TRADEMARKS/SERVICE MARKS, LOGOS, SLOGANS, AND TAGLINES
All trademarks, service marks, logos, slogans, and taglines displayed on or through the Services are property of Jacobus or their respective owners and nothing contained herein should be construed as granting any license or right to use any trademarks, service marks, logos, slogans, or taglines displayed on or through the Services without the express written permission of Jacobus, or such third party that may own the trademark, service mark, logo, slogan, or tagline.

SUBMISSIONS
Jacobus is always interested in hearing from you regarding our services, products and Services, or questions or comments about our Services. However, unless we directly ask you for a submission in some form, please do not submit to us ideas, notes, drawings, concepts or other information (collectively, “Submissions”).

When you submit either solicited or unsolicited Submissions, you grant Jacobus a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable, and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights, and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform, and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.

PROHIBITED USES
You may use the Services only for lawful purposes and in accordance with these Terms of Use. You agree not to access or use the Services in any unlawful way or for an unlawful or illegitimate purpose, including without limitation in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries.) You shall not post or transmit via the Services (a) a message or information under a false name; (b) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening, or hateful to any person; (c) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity of others; or (d) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

You shall not attempt to disrupt the operation of the Services in any manner, including through the use of methods such as denial-of-service attacks, flooding, or spamming, and you will not transmit, distribute, introduce, or otherwise make available in any manner through the Services any computer virus, keyloggers, spyware, worms, Trojan horses, time bombs, or any other malicious or harmful code. You shall not use the Services in any manner that could damage, disable, or impair our Services or networks. You shall not attempt to gain unauthorized access to any computer systems or networks, through hacking, password mining, or any other means. You shall not use any robot, scraper, or other means to access the Services. Furthermore, you shall not impersonate or attempt to impersonate Jacobus, a Jacobus employee, another user, or any other person or entity, or engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Jacobus or the users of the Services or expose them to liability.

CORRECTION OF ERRORS AND INACCURACIES
The content of the Services, including but not limited to text, pricing, availability and descriptions may contain errors and inaccuracies, and may not be complete or current. Jacobus reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice.

COOPERATION WITH LAW ENFORCEMENT
We have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of any posting materials on or through the Services. YOU WAIVE AND HOLD HARMLESS JACOBUS AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY OR ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER JACOBUS, SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.

THIRD PARTY WEBSITES AND INTERACTIONS
Our Services may contain links to third party websites. Please be aware, however, that we do not control or monitor such third party websites and we are not responsible for any third party websites accessed through the Services. Inclusion of, linking to or permitting the use or installation of any third party website does not imply that approval or endorsement thereof by us. If you decide to leave the Services and access the third party website, you do so at your own risk and you should be aware that these Terms of Use no longer apply to your usage of such third party websites.

Furthermore, the Services may allow you the opportunity to correspond or engage in business dealings with third party advertisers and suppliers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser, supplier or affiliate. You agree that Jacobus shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or suppliers on the Services.

DISCLAIMER OF WARRANTIES
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES, ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES, YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES, OR ANY SERVICES LINKED TO IT. JACOBUS ASSUMES NO RESPONSIBILITY FOR ANY LOSS, DAMAGES, LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, THE INTERNET, OR FOR YOUR MISUSE OF ANY ADVICE, SUBMISSIONS, IDEAS, INFORMATION, INSTRUCTIONS, OR GUIDELINES ACCESSED THROUGH THE SERVICES.

THE INFORMATION AND SERVICES OFFERED ON OR THROUGH THE SERVICES AND ANY REFERENCED THIRD PARTY WEBSITES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THIS INCLUDES ANY SERVICE PROVIDERS INCLUDED ON THE SERVICES. ANY THIRD PARTY SERVICE PROVIDERS ARE SUPPLIED AS A CONVENIENCE TO YOU, AND THE LISTING OF SUCH DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. JACOBUS DISCLAIMS ALL EXPRESSED AND IMPLIED WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

JACOBUS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, OR CONTENT OR IMAGES SUBMITTED OR POSTED ON THE SERVICES IN TERMS OF ITS OWNERSHIP, VALIDITY, CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE, INCLUDING CONTENT AND IMAGES POSTED BY USERS OF THE SERVICES.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JACOBUS OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY JACOBUS. IN NO EVENT SHALL JACOBUS, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR DIRECT DAMAGES COLLECTIVELY IN AN AGGREGATE AMOUNT EXCEEDING TEN DOLLARS (US $10.00). THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Jacobus, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorneys’ fees and costs) arising from your access to or use of the Services, your violation of these Terms of Use, or your infringement of any intellectual property or other right of any person or entity.

GOVERNING LAW AND JURISDICTION
All matters relating to the Services and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Wisconsin, USA, without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction).

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin, in each case located in the City of Milwaukee and the County of Milwaukee. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. Furthermore, in addition to such other legal and equitable rights and remedies that may be available to Jacobus, Jacobus shall be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security regarding a violation of these Terms of Use.

WAIVER AND SEVERABILITY
No waiver by Jacobus of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of any other term or condition, and any failure of Jacobus to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

COPYRIGHT INFRINGEMENT CLAIMS
Jacobus respects the intellectual property rights of others. It is Jacobus’ policy to comply with the Digital Millennium Copyright Act, title 17, United States Code, Section 512, including, without limitation, responding to notices of alleged copyright infringement, and other applicable intellectual property laws.

When reporting infringing material to Jacobus (“DMCA Notice”) please provide: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Jacobus to locate the material; (d) information reasonably sufficient to permit Jacobus to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)(2)), Jacobus’ designated agent to receive notices and counter notices of claimed infringement is:

If you wish to report infringing materials other than for copyright infringement, please provide as much of the above information as possible. Although Jacobus reserves the right to remove any material that it believes in good faith to be infringing material that is used without authorization by any user of the Services, we are not obligated to do so except in accordance with the Digital Millennium Copyright Act. We also reserve the right to suspend or delete the account of any repeat offender.

ENTIRE AGREEMENT
These Terms of Use, Privacy Policy and any other terms linked on the Services constitute the sole and entire agreement between you and Jacobus regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

YOUR COMMENTS AND CONCERNS
If you have questions, comments, concerns, or feedback regarding these Terms of Use or the Services, please contact Jacobus via any of the methods set forth below:

19925221.4