EVALUATION TERMS AND CONDITIONS
The authorization by Pure Bioscience, Inc. ("Pure") to Brenntag Specialties, Inc. ("Brenntag") to provide one or more samples of SDC Bulk Concentrate (as defined below) to the Company identified above (together with its Affiliates (as defined below), collectively, the "Evaluator"), and the right of the Evaluator to receive and use such samples, are subject to the following evaluation terms and conditions (this "Evaluation Agreement").
IF THE EVALUATOR DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS EVALUATION AGREEMENT AND/OR DOES NOT AGREE TO BE BOUND THEREBY OR SUBJECT THERETO, PLEASE SELECT THE "NO, I DISAGREE" BOX LOCATED AT THE BOTTOM OF THIS PAGE. IF THE EVALUATOR SELECTS THE "NO, I DISAGREE" BOX LOCATED AT THE BOTTOM OF THIS PAGE, THEN THE EVALUATOR SHALL NOT HAVE THE RIGHT TO RECEIVE OR USE SDC BULK CONCENTRATE OR ANY OTHER PURE TECHNOLOGY (AS DEFINED BELOW).
BY POPULATING THE SAMPLE REQUEST AGREEMENT FORM ABOVE AND SELECTING THE "YES, I AGREE WITH THE TERMS AND CONDITIONS" BOX LOCATED AT THE BOTTOM OF THIS PAGE, THE EVALUATOR AGREES TO BE BOUND BY AND SUBJECT TO THIS EVALUATION AGREEMENT:
For purposes of this Evaluation Agreement (as defined below), the following terms shall have the respective meanings set forth below:
- "Affiliate" shall mean, with respect to a Person, any entity that controls or is controlled by such Person, or is under common control with such Person. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation).
- "Confidential Information" shall mean, collectively, all confidential or proprietary information and data that (a) is provided by or on behalf of Pure to the Evaluator or by Brenntag to the Evaluator under or in connection with this Evaluation Agreement, including, without limitation, any data and information concerning customers or markets or the composition, manufacture, development or use of the Pure Technology, and (b) derived or otherwise generated by or on behalf of the Evaluator from the foregoing. Notwithstanding the foregoing, Confidential Information shall not include that portion of such information and data which, and only to the extent, the Evaluator can establish by written documentation: (i) is known to the Evaluator as evidenced by its written records before receipt thereof from or on behalf of Pure or Brenntag, as applicable, or (ii) is disclosed to the Evaluator free of confidentiality obligations by a Third Party who has the right to make such disclosure, or (iii) is or becomes part of the public domain through no fault of the Evaluator (each, a "Confidentiality Exception").
- "Effective Date" shall mean the date on which the Evaluator selects the "Yes, I Agree with the Terms and Conditions" box located at the bottom of this page.
- "FDA" shall mean the United States Food and Drug Administration, or any successor entity thereto.
- "FDA Approved" shall mean, with respect to a product in a country, that such product (a) in the United States, is the subject of a New Drug Application, Abbreviated New Drug Application or Biologics License Application in the case of a drug, or the subject of a Premarket Approval application or 510(k) application in the case of a device, that has been approved by the FDA, and (b) in any other country, is the subject of the equivalent foreign application that is approved by the equivalent foreign governing health authority of such country.
- "Field" shall mean each of the fields specified in Schedule 1 under the heading "Field".
- "Person" shall mean an individual, corporation, partnership, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
- "Product" shall mean each product that (a) comprises, SDC as an antimicrobial or preservative agent (but not a pharmaceutical agent), (b) is developed, produced and sold by or on behalf of the Evaluator, and (c) is labeled or otherwise intended solely for use in the applicable Field and is promoted, marketed and sold solely for use in such Field; and "Products" shall mean, collectively, all such products. Without limitation, the Products shall exclude any product that comprises SDC and is FDA Approved or is otherwise regulated by the FDA (or is foreign equivalent)
- "Pure IP Rights" shall mean, collectively, the Pure Know-How Rights and Pure Patent Rights.
- "Pure Know-How Rights" shall mean, collectively, all trade secret and other know-how rights regarding the Pure Technology.
- "Pure Parent Rights" shall mean, collectively, (a) all patent applications heretofore or hereafter filed in any jurisdiction which claim, and only to the extent they claim, the Pure Technology, or SDC or its use in any product; (b) all patents that have issued or in the future issue from any of the foregoing patent applications, including without limitation utility models, design patents and certificates of invention; and (c) all divisionals, continuations, continuations-in-part, reissues, renewals, extensions or additions to any such patents and patent applications.
- "Pure Technology" shall mean, collectively, all compositions, formulations, methods, processes, uses, technology, data and information existing as of the Effective Date, or acquired or developed thereafter, to the extent they comprise, are responsible for, derive, result from or relate to (a) SDC, (b) electrolytically generated and stabilized ionic silver in a complex with an organic acid and all compositions, formulations, solutions, modifications, improvements and enhancements thereof and thereto (including without limitation silver dihydrogen citrate), and (c) all methods of manufacture or production and all uses of each of the foregoing. Pure Technology expressly shall exclude Products developed and sold by Customers. All Pure Technology that does not fall within the scope of a Confidentiality Exception shall be the Confidential Information of Pure.
- "Pure Technology Supported Patent Rights" shall mean, collectively, (a) all patents that have issued or in the future issue, including without limitation utility models, design patents and certificates of invention; and (b) all reissues, renewals, extensions or additions to any such patents; in each case (i) that reference, use or are supported by the Pure Technology or data or information derived from the use of the Pure Technology, and (ii) only to the extent they claim, cover or otherwise relate to the Pure Technology.
- "Purpose" shall mean the Evaluator's evaluation of its interest in entering into a further business relationship with Brenntag and Pure for supply of SDC Bulk Concentrate to the Evaluator for the purpose of developing, making, having made, using, offering for sale, selling and importing Products for use in the applicable Field in the applicable Territory.
- "Sample" shall mean, collectively, one or more samples of SDC Bulk Concentrate provided by Brenntag to an Evaluator under this Evaluation Agreement.
- "SDC" shall mean silver dihydrogen citrate manufactured and sold by or on behalf of Pure.
- "SDC Bulk Concentrate" shall mean the bulk form of SDC (at a concentration of 2400ppm).
- "Territory" shall mean, with respect to each Field, the applicable territory specified in Schedule 1 under the heading "Territory".
- "Third Party" shall mean any Person other than Pure, Brenntag, the Evaluator and their respective Affiliates.
- LIMITED USE
- Limited Use by the Evaluator The Evaluator shall use the Sample solely for the Purpose, and shall not use the Sample for any other purpose. The Evaluator shall keep confidential and the Evaluator shall limit transfer and disclosure of the Sample on a need to know basis, as reasonably necessary for the Purpose, to its employees who are bound in writing with the Evaluator to hold in confidence, not use, transfer or disclose the Sample other than as expressly permitted hereby. The Evaluator shall not reverse engineer the Sample, or determine or attempt to determine the composition, production or characteristics thereof. Without limiting the generality of the foregoing, the Evaluator hereby acknowledges that (a) this Evaluation Agreement is intended to facilitate only the initial evaluation by the Evaluator of the Sample, and (b) the Evaluator shall not initiate or enter into any product development or commercialization activities related to the Pure Technology unless and until the Evaluator enters into a separate license agreement with Pure for such purpose.
- Grantback License to Pure This Evaluation Agreement shall not restrict Pure's freedom to develop and commercialize the Pure Technology. The Evaluator hereby grants to Pure a royalty-free, perpetual, irrevocable, nonexclusive, worldwide license (with the right to grant sublicenses) under the Pure Technology Supported Patent Rights for all uses.
- No Implied Rights and Licenses Only rights and licenses expressly granted herein shall be of legal force and effect. No license or other right shall be created hereunder by implication, estoppel or otherwise.
- EVALUATOR'S OBLIGATIONS
- Results Periodically, as reasonably requested by Pure, the Evaluator shall provide Pure with written reports regarding all uses made of SDC and the other Pure Technology, and shall provide Pure with copies of all data and information derived therefrom. Pure shall not disclose to any Third Party (other than Brenntag) any such non-public reports, data and information.
- Compliance with the Laws The Evaluator shall comply with all laws, regulations and guidelines applicable to the Evaluator's use of the Pure Technology.
- INTELLECTUAL PROPERTY RIGHTS
- Ownership The Evaluator hereby acknowledges and agrees that Pure is the sole owner or licensee of the Pure Technology and the Pure IP Rights. The Evaluator hereby assigns and transfers to Pure all right, title and interest therein and thereto.
- Control Pure shall have the right but not the obligation, in its sole discretion, to prepare, file, register, maintain, defend and enforce the Pure IP Rights. Pure shall have no obligation to prepare, file, register, maintain, defend or enforce the Pure IP Rights.
- NO WARRANTIES
- No Warranties The Evaluator hereby acknowledges that the Sample is experimental in nature and that it is provided "AS IS." The Evaluator's use and evaluation of the Sample shall be at its own risk. BRENNTAG AND PURE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SAMPLE, AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. The Evaluator covenants not to sue either Brenntag or Pure on account of or in connection with any claim or cause of action based upon or arising out of Evaluator's use and evaluation of the Sample and shall hold harmless and indemnify Brenntag and Pure against any and all losses, liabilities, damages and expenses (including reasonable attorneys' fees and costs) of every kind arising from or relating to the use and evaluation by the Evaluator of the Sample.
- LIMITATION OF LIBALITY IN NO EVENT SHALL BRENNTAG OR PURE BE LIABLE TO THE EVALUATOR OR ANY OTHER THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST SALES, LOST REVENUE OR LOSS OF USE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF PURE HAS BEEN INFORMED OF OR IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
- Confidential Information The Evaluator shall maintain in confidence the Confidential Information, shall not use or grant the use of the Confidential Information except as expressly permitted hereby, and shall not disclose the Confidential Information except on a need-to-know basis to the Evaluator's directors, officers, employees, consultants and authorized subcontractors, to the extent such disclosure is reasonably necessary for the Purpose. To the extent that disclosure to any person is authorized by this Evaluation Agreement, prior to disclosure, the Evaluator shall obtain written agreement of such Person to hold in confidence and not disclose, use or grant the use of the Confidential Information except as expressly permitted under this Evaluation Agreement. The Evaluator shall notify Pure promptly upon discovery of any unauthorized use or disclosure of the Confidential Information.
- Permitted Disclosures The confidentiality obligations under this Section 6 shall not apply to the extent that the Evaluator is required to disclose information by applicable law, regulation or order of a governmental agency or a court of competent jurisdiction; provided, however, that the Evaluator shall provide written notice thereof to Pure, consult with Pure with respect to such disclosure and provide Pure sufficient opportunity to object to any such disclosure or to request confidential treatment thereof.
- Confidential Information The Evaluator acknowledges and agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information shall cause irreparable harm and significant injury to Pure and Brenntag, the extent of which shall be difficult to ascertain and for which there would be no adequate remedy at law. Accordingly, the Evaluator agrees that Pure and Brenntag, in addition to any other available remedies, shall have the right to obtain an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Evaluation Agreement, without the necessity of posting any bond or other security. The Evaluator shall notify Pure and Brenntag in writing immediately upon the Evaluator's becoming aware of any such breach or threatened breach.
- Pure Technology The Evaluator acknowledges that, due to the unique nature of the Pure Technology, the unauthorized use, transfer or disclosure of the Pure Technology shall cause irreparable harm and significant injury to Pure and Brenntag, the extent of which will be difficult to ascertain and for which there shall be no adequate remedy at law. Accordingly, the Evaluator further acknowledges that Pure and Brenntag, in addition to any other available remedies, shall have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Evaluation Agreement, without the necessity of posting any bond or other security. The Evaluator shall notify Pure and Brenntag in writing immediately upon the Evaluator's becoming aware of any such breach or threatened breach.
- INDEMNITY INSURANCE
- Indemnity The Evaluator shall defend, indemnify and hold harmless Brenntag, Pure and its Representatives from all losses, liabilities, damages and expenses (including reasonable attorneys' fees and costs) resulting from any claims, demands, actions and other proceedings by any Third Party to the extent resulting from (a) any breach of this Evaluation Agreement by or on behalf of the Evaluation and/or its subdistributors, (b) any negligent or intentional act or omission by or on behalf of the Evaluator and/or its subdistributors in the performance of its activities contemplate by this Evaluation Agreement, (c) any misrepresentations by the Evaluator, or (d) any violation by the Evaluator (or any of its employees or agents) of, or failure to adhere to, any applicable law, regulation or order in any country.
- Insurance The Evaluator shall maintain general commercial liability insurance, including contractual liability insurance and product liability insurance against claims regarding its activities contemplated by this Evaluation Agreement, in such amounts as it customarily maintains for similar products and activities. The Evaluator shall maintain such insurance for so long as it maintains insurance for itself covering such activities.
- TERM AND TERMINATION
- Term This Agreement shall commence on the Effective Date and, unless terminated earlier as set forth herein, shall terminate ninety (90) days thereafter or extended by mutual written agreement of Pure, Brenntag and the Evaluator.
- Termination Either Brenntag or Pure may terminate this Agreement upon thirty (30) days prior written notice to the Evaluator.
- Effect of Expiration or Termination Promptly upon the expiration or termination of this Agreement, unless the parties otherwise mutually agree in writing, (a) the Evaluator shall destroy or return to Pure (as requested by Pure) all tangible items regarding the Confidential Information and all copies thereof; provided, however, that the Evaluator shall have the right to retain one (1) copy for its legal files for the sole purpose of determining its obligations hereunder, and (b) the Evaluator shall return to Pure all Pure Technology. The provisions of Sections 2.2, 2.3, 3.1, 4, 5, 6, 7, 8, 9.3 and 10 shall survive the expiration or termination of this Evaluation Agreement.
- Governing Law and Venue This Evaluation Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of law principles thereof, and not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The Evaluator hereby submits to the exclusive jurisdiction of, and venue in, the federal courts located in San Diego, California, USA for any action or cause of action directly or indirectly related to this Evaluation Agreement or the subject matter thereof.
- Waiver No waiver by Brenntag or Pure of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
- Assignment Neither this Evaluation Agreement nor any right or obligation hereunder may be assigned or delegated, in whole or part, by the Evaluator without the prior express written consent of Pure. Any permitted assignee shall assume all obligations of its assignor under this Evaluation Agreement. Any purported assignment in violation of this Section 10.3 shall be void.
- Independant Contractors The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint venturers of the others for any purpose as a result of this Evaluation Agreement or the transactions contemplated thereby. The Evaluator shall not act as an agent or legal representative of Pure, nor shall the Evaluator have any right or power to act for or bind Pure in any respect or to pledge its credit.
- Further Actions Each party shall execute, acknowledge and deliver such further documents and instruments and to perform all such other acts as may be necessary or appropriate in order to carry out the purposes and intent of this Evaluation Agreement.
- Notices All requests and notices required or permitted to be given to the parties hereto shall be given in writing, shall expressly reference the section(s) of this Evaluation Agreement to which they pertain, and shall be delivered to the other party, effective on receipt, at the address as designated in writing by such party from time to time.
- Force Majeure Nonperformance of a party (other than for the payment of money) shall be excused to the extent that performance is rendered impossible by war, act of terrorism, natural disaster, fire, strike, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond its reasonable control and not caused by the negligence, intentional conduct or misconduct of the nonperforming party; provided, however, that the nonperforming party shall use commercially reasonable efforts to resume performance as soon as reasonably practicable.
- Severability Each party hereby acknowledges that it does not intend to violate any public policy, statutory or common laws, rules, regulations, treaty or decision of any government agency or executive body thereof of any country or community or association of countries. Should one or more provisions of this Evaluation Agreement be or become invalid, the parties shall substitute, by mutual consent, valid provisions for such invalid provisions which valid provisions in their economic effect are sufficiently similar to the invalid provisions that it can be reasonably assumed that the parties would have entered into this Evaluation Agreement with such provisions. In case such provisions cannot be agreed upon, the invalidity of one or several provisions of this Evaluation Agreement shall not affect the validity of this Evaluation Agreement as a whole, unless the invalid provisions are of such essential importance to this Evaluation Agreement that it is to be reasonably assumed that the parties would not have entered into this Evaluation Agreement without the invalid provisions.
- Affiliates The Evaluator entity that has executed or otherwise accepted this Evaluation Agreement (a) hereby represents and warrants that all of its Affiliates within the definition of the Evaluator shall be bound by the terms and conditions of this Evaluation Agreement as if each were an original signatory to this Evaluation Agreement, and (b) shall be jointly and severally liable for all acts and omissions of such Affiliate in connection with this Evaluation Agreement.
- Complete Agreement This Evaluation Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and all prior representations, understandings and agreements regarding the subject matter hereof, either written or oral, expressed or implied, are superseded and shall be and of no effect. No amendment, modification or waiver of the terms of this Evaluation Agreement shall be binding unless reduced to writing and signed by an authorized officer of Pure.
FIELD AND TERRITORY
|Personal Care Field
Set forth below are the definitions of the various terms used within the definitions of the applicable Field(s) as used in this Schedule 1:
Agricultural Field: topical application during the growing cycle in the field on any plant.
Food Field: application on or to any article of food after harvest or slaughter, excluding the Agricultural Field and the Water Treatment Field.
Healthcare Field: prevention, treatment, diagnosis, detection, monitoring or predisposition testing of any medical disease, state or condition in humans.
Oil and Gas Field: application on any inanimate surface of a product used directly and specifically for the extraction, refinement, storage or transport of oil or natural gas, but only to the extent useful specifically therefor.
Personal Care Field: topical application on any animate human surface (including without limitation skin and mucosa) for any beauty, cosmetic, health, personal hygiene or oral hygiene use, excluding the Healthcare Field.
Pet Care Field: topical application on any animate non-human animal surface (including without limitation skin and mucosa) for any beauty, cosmetic, health, animal hygiene or oral hygiene use, excluding the Veterinary Field.
Preservative Field: enhancement or extension of the stability or shelf life of a separate product, excluding the Food Field, Healthcare Field and Veterinary Field.
Surface Disinfection / Sanitization / Cleaning Field: application on any inanimate hard surface of a product used directly and specifically for the purpose of disinfecting and/or sanitizing and/or cleaning such surface, excluding the Oil and Gas Field and the Textile Field.
Textile Field: application at the site of production to any woven textile that is intended to be sold or otherwise placed into commerce.
Veterinary Field: prevention, treatment, diagnosis, detection, monitoring or predisposition testing of any medical disease, state or condition in non-human animals.
Water Treatment Field: application to water for the purpose of purification or preservation of such water.
The listing of the various terms above is for definitional purposes only.
BY CLICKING THE "SUBMIT" BUTTON BELOW, THE CUSTOMER ACKNOWLEDGES THAT 1) THE INDIVIDUAL SUBMITTING THE FORM HAS READ AND REVIEWED THIS CUSTOMER AGREEMENT IN ITS ENTIRETY, (2) THE INDIVIDUAL SUBMITTING THE FORM HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS CUSTOMER AGREEMENT ON BEHALF OF THE CUSTOMER, AND (3) THIS CUSTOMER AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS ON THE CUSTOMER.