EMI Chain of Custody

COLORADO SCHOOL OF MINES

EARTH MECHANICS INSTITUTE USE AGREEMENT

In accordance with its Educational Business Activities Policy, Colorado School of Mines (“Mines”), may offer to the public the use of personnel, equipment, and materials (“Use”) associated with the Earth Mechanics Institute (“EMI”). This EMI Use Agreement (“Agreement”) sets forth the terms and conditions under which Mines will perform Geomechanics, drilling, and excavation related testing and analysis on EMI instrumentation (“Services”) for an external party (“Client”). External parties interested in the Services must agree to the following terms and conditions. By clicking or checking the box to accept, Client agrees to the terms and conditions set forth in this Agreement.

Payment. A Payment is due within thirty (30) days of Client's receipt of an invoice from the EMI. Preferred payment is by check or wire transfer. Make all checks to Colorado School of Mines-EMI. Please include the invoice number and Index 330889 on your payment. A 3% processing fee will be added to all credit card payments. A $20 USD wire transfer fee will be applied to all international wire transfers. EMI reserves the right to charge a one point five percent (1.5%) monthly late fee on invoices not paid within thirty (30) days or otherwise agreed upon. All payments made to Mines under this Agreement are non- refundable.

Confidentiality. Confidential information must be clearly and conspicuously marked as "confidential" or "proprietary," at the time of initial disclosure. Confidential information disclosed orally must be identified as confidential at the time of disclosure and then subsequently summarized by the Client in written form in a clearly and conspicuously marked document and submitted to Mines within twenty (20) days of the initial disclosure. For a period of one (1) year from the date of disclosure, Mines shall treat all Client’s confidential information as confidential. At Client’s direction, confidential information shall be returned or destroyed upon expiration or termination of the Services. All Services performed under this Agreement are considered confidential, and Mines shall not disclose, discuss, comment, or provide any information about any aspect of the Services to third parties except as may be required by law. Client acknowledges that Mines is subject to the Colorado Open Records Act (C.R.S. §§ 24-72-201 et seq.). All Confidential Information marked “Confidential” shall be treated by Mines as confidential to the extent permitted under § 24-72-204.

No Warranty, Liability Waiver, and Release. The Services performed by Mines under this Agreement and any deliverables provided to Client are believed to be reliable; notwithstanding the foregoing, Mines is not a commercial laboratory. MINES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES AS TO ANY MATTER WHATSOEVER. Client is solely responsible for evaluating whether the deliverables obtained from EMI services are suitable for Client’s use or purpose. CLIENT, ON BEHALF OF ITSELF, ASSIGNS, AND SUCCESSORS IN INTEREST, HEREBY RELEASES MINES FROM ANY AND ALL DAMAGES, LIABILITY, CLAIMS, EXPENSES, OR LOSS RESULTING FROM OR ARISING OUT OF THE SERVICES PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY RESULTS AND DELIVERABLES.

Assumption of Risk. Client is fully responsible for transportation of any materials or samples to Mines, at Client’s sole cost and expense. Client assumes responsibility for all loss or damage to the samples and materials provided to Mines, regardless of whether such samples and materials are or were ever in Mines’ possession.

Governmental Immunity. Nothing herein shall be construed to waive, limit, or otherwise modify any governmental immunity available to any of the persons or entities released herein under the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq.


Export Control & Hazardous Material. Client shall not provide or make accessible to Mines any information or material controlled by the International Traffic in Arms Regulations (“ITAR”), Export Administration Act/Regulations (“EAR”), or other controlled information, or hazardous material without first notifying Mines in writing of the existence and nature of the export-controlled information and obtaining the prior written agreement of Mines, through its Director of Research Compliance, prior to any performance of the Services by Mines. Mines has the right, at all times, to deny acceptance of any export-controlled or hazardous materials. Further, Mines may refuse to perform the Services if it becomes aware that any of Client’s materials or samples are export-controlled or hazardous in nature and that Client failed to disclose the nature of such materials or samples to Mines in advance of providing said materials and samples to Mines. Attestation. Client attests that it diligently considered utilizing other commercial facilities prior to seeking Use of the EMI instruments and deemed such other facilities as unavailable, inaccessible, or otherwise unsuitable for Client's needs.

Force Majeure. Mines shall not be liable for any cancellation or delay of the performance of the Services if such cancellation or delay is due to, or in any manner caused by, (i) lightning, fire, severe weather, explosion, pest damage, strikes or labor disputes, floods, acts of God, pandemic, epidemic, government orders, closure of campus for health or safety concerns, travel restrictions related to health & safety, war, terrorism, civil disturbances, and acts of civil or military authorities or the public enemy, or (ii) any other act, event, cause, or occurrence that was not avoidable and not within the reasonable control of Mines.

Entire Agreement. This Agreement contains the entire agreement between Client and Mines on the subjects addressed herein and supersedes any and all prior oral or written agreements or representations between Client and Mines, or agents and employees of other entity, including but not limited to, any boilerplate terms and conditions printed on a purchase order or other document issued by the Client to indicate acceptance of the terms hereof or facilitate payment of the fees set forth herein.

Severability. This Agreement is intended to be as broad and inclusive as permitted by the laws of the State of Colorado. If any portion herein is held to be invalid or unenforceable, the remaining portion shall continue in full legal force and effect.