Avela™ (R)-1,3 Butanediol Sample Kit Agreement


This AvelaTM (R)-1,3 Butanediol (“Avela”) Sample Kit Agreement (“Agreement”) is entered into by and between Genomatica, Inc. (“Genomatica,” “we” or “us”) and your employer, which by assenting to this Agreement you represent you are authorized to act on behalf of (hereafter, “you” and “your”). You assent to the terms of this Agreement by opening the Avela product sample kit provided to you (the “Kit”) and may use the Avela therein, subject to the terms of this Agreement and pursuant to and in compliance with the instructions and other documentation provided to you, for the sole purpose of evaluating the palatability of Avela as a food ingredient (“Evaluation”).

Limited Use.  The Kit is provided to you for the sole purpose of conducting the Evaluation. You agree that: (a) you will use the Avela included in the Kit strictly in compliance with (i) the terms of this Agreement and any instructions or other documentation included in the Kit or otherwise provided to you, (ii) the Safety Data Sheet provided to you, (iii) the self-GRAS proposed level of use in beverages, bars and gels of no more than 11.5 g/serving that is expected to result in intakes ranging from 11.5 to 34.5 g (R)-1,3-butanediol/day, and (iv) all applicable laws and regulations; and (b) you will not (i) reverse engineer, purify, produce or modify the Avela, (ii) test or administer, or permit any third party to test or administer any Avela or Avela-containing composition on or to animals, or (iii) market, sell, distribute, commercialize, export or transfer any Avela-containing composition to any third party.

Confidentiality.  You shall keep the Avela and other contents of the Kit, and any related information on Avela properties or composition, strictly confidential and not disclose or transfer them to any third party. Upon completion of the Evaluation, you shall destroy all Avela and related documentation provided to you, and all compositions incorporating Avela, unless you and Genomatica have entered into a definitive purchase agreement for your commercial use of Avela.

No Warranty.  To the extent permitted by law, we disclaim all representations and warranties of or in relation to the Avela, other Kit contents and all documentation provided to you, and nothing in this Agreement shall be construed as a representation or warranty of or in relation to any of the foregoing. Each of the foregoing is provided “as-is” and without any express or implied warranty, including without limitation, any implied warranty of manufacture, title, merchantability, fitness for a particular purpose or non-infringement.

Limitation of Liability.  You assume all liability for any damages arising out of the Evaluation, any other use or storage of the Avela or other Kit contents and/or any Evaluation results. We shall not be liable for any damages or losses arising out of the Evaluation, any other use or storage of the Avela or other Kit contents, any Evaluation results and/or any direct or indirect damages arising from any of the foregoing. You shall indemnify, defend and hold us and our directors, officers, employees and agents harmless from all claims, damages, liabilities, penalties, awards, fines, costs and expenses of any kind that may arise from the Evaluation, any other use or storage of the Avela or other Kit contents and/or any Evaluation results. To the extent permitted by law, in no event will we be directly or indirectly liable for any special, incidental, consequential, exemplary, punitive, multiple or other indirect damages, or for loss of use, profits, savings, revenues, data or time, or any other commercial or personal loss, arising from or relating to this Agreement, the Avela, other Kit contents and/or any Evaluation Results, whether based upon warranty, contract, tort, negligence, strict liability or otherwise, regardless of any notice of such damages.

No Implied License.  No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted under this Agreement and we retain all right, title and interest (including all intellectual property rights) in and to the Avela and all related information provided to you. You are not authorized to use the Genomatica or Avela trademarks, brand names or logos.

General.  This Agreement and any dispute connected with it will be governed by the laws of the state of California excluding its choice-of-law principles. Any and all disputes arising between you and us shall be settled by discussions between you and us, and if a settlement is not reached, then any such disputes shall be referred to and finally settled by commercial arbitration under the rules of the American Arbitration Association in San Diego, California or as otherwise mutually agreed. Any award, costs, fees and/or order rendered in any such arbitration will be binding upon the parties and be enforceable by any court of competent jurisdiction. This Agreement (i) including all documentation provided to you, represents the entire agreement between you and us regarding the Kit and supersedes all prior and contemporaneous understandings and agreements relating to the Kit, (ii) may not be modified or amended except by written agreement signed by both parties, and (iii) shall remain in effect for so long as you retain possession or control of any Avela or Avela-containing composition, and the terms herein concerning confidentiality obligations, intellectual property, disclaimers, limitations, choice of law, jurisdiction, dispute resolution and survival shall survive thereafter.