Thank you for your interest in Genomatica Inc.’s (“Genomatica”) naturally-derived Brontide® 1,3 butylene glycol that is made from renewable feedstocks produced by a bioprocess developed by Genomatica (“Brontide”). These terms, along with any documentation supplied with the Sample (as defined below), is a legal agreement (“Agreement”) between Genomatica and you (either as an individual or as an authorized representative of your employer). You acknowledge and agree to all of the terms of this Agreement upon request of a Brontide sample (“Sample”) or upon use of a Sample. You are only authorized to use the Sample if you agree to all the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not use the Sample.
Provision of Samples and Use Restrictions. Any Sample provided to you by or on behalf of Genomatica is provided solely for your internal evaluation purposes at your facility (“Permitted Uses”) and at your sole responsibility and risk. You agree that you will not (1) test or administer or allow to be tested or administered the Sample or a Brontide-containing composition internally to humans or on or to animals and, (2) you will not (a) use Samples for (i) research and/or development of nutraceuticals, pharmaceuticals, polymers and/or chemicals capable of being used as polymer precursors or (ii) research and/or development, purification, production, or commercialization of 1,3 butylene glycol (collectively, the “Excluded Uses”) or (b) file for any patent applications or any other intellectual property rights based on the Excluded Uses. You may not market, sell, distribute, commercialize, export, or transfer any Sample to any third party.
Compliance with Laws and Agreement. You agree that you will use the Sample in compliance with all applicable laws, statutes, and regulations and this Agreement. You agree that you do not intend to and will not export or transmit, directly or indirectly, the Sample to any country in violation of export restrictions.
No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GENOMATICA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND FOR THE SAMPLE AND/OR ANY DOCUMENTATION SUPPLIED WITH THE SAMPLE. THE SAMPLE AND ANY DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MANUFACTURE, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT HOWEVER ARISING. NOTHING IN THIS AGREEMENT MAY BE CONSTRUED AS A WARRANTY OR REPRESENTATION BY GENOMATICA THAT THE SAMPLE OR DOCUMENTATION OR ANY PRODUCT DEVELOPED WITH OR INCORPORATING THE SAMPLE WILL BE FREE FROM INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE USE, RELIANCE, OR PERFORMANCE OF THE SAMPLE AND/OR ANY DOCUMENTATION SUPPLIED WITH THE SAMPLE.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GENOMATICA BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, SAVINGS, OR REVENUES, LOSS OF DATA, LOSS OF REVENUE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, OR LOSS OF USE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
Indemnification. You hereby agree to defend, indemnify, and hold Genomatica, its officers, directors, employees, agents, and distributors harmless from and against any and all losses, damages, fees, expenses, penalties, fines, settlement amounts or costs, including reasonable attorneys’ fees and witness fees, in connection with any actual or threatened action, lawsuit, proceeding, or claim relating to or arising out of (1) your handling, evaluation, storage, or use of the Sample and/or (2) your breach of the terms and conditions of this Agreement (including, but not limited to, any Excluded Uses or sale of the Sample).
No Implied Licenses. Except as expressly set forth under this Agreement, no rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted under this Agreement. Genomatica shall retain all right, title and interest (including all intellectual property rights) in and to the Sample and any documentation. You are not authorized to use the Genomatica or Brontide name, or any Genomatica, Brontide, or Brontide-leaf trademarks, brand names, or logos.
Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California, excluding its choice-of-law principles, and all claims relating to or arising from this Agreement or breach thereof shall be decided solely and exclusively by the State and/or Federal Courts located in San Diego, CA.
General Provisions. The waiver from time to time by Genomatica of any of its rights or Genomatica’s failure to exercise any remedy will not operate or be construed as a continuing waiver of same or of any other of Genomatica’s rights or remedies provided in this Agreement. The provisions of this Agreement are deemed severable. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision hereof which can be given effect without the invalid or unenforceable provision. This Agreement constitutes the entire agreement between you and Genomatica relative to the subject matter of this Agreement, and supersedes all prior and contemporaneous communications, negotiations, understandings, agreements, or representations, either written or oral, express or implied, as to its specific subject matter.