Purchase Request Agreement

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  • CUSTOMER TERMS AND CONDITIONS


    The authorization by Pure Bioscience, Inc. ("Pure") to Brenntag Specialties, Inc. ("Brenntag") to resell SDC Bulk Concentrate (as defined below) to the Company identified above (together with its Affiliates (as defined below), collectively, the "Customer"), and the right of the Customer to purchase SDC Bulk Concentrate from Brenntag, are subject to the following customer terms and conditions (this "Customer Agreement").


    IF THE CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS CUSTOMER 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 CUSTOMER SELECTS THE "NO, I DISAGREE" BOX LOCATED AT THE BOTTOM OF THIS PAGE, THEN THE CUSTOMER SHALL NOT HAVE THE RIGHT TO PLACE AN ORDER FOR OR USE SDC BULK CONCENTRATE OR ANY OTHER PURE TECHNOLOGY (AS DEFINED BELOW).


    BY POPULATING THE PURCHASE REQUEST AGREEMENT FORM ABOVE AND SELECTING THE "YES, I AGREE WITH THE TERMS AND CONDITIONS" BOX LOCATED AT THE BOTTOM OF THIS PAGE, THE CUSTOMER AGREES TO BE BOUND BY AND SUBJECT TO THIS CUSTOMER AGREEMENT:


    For purposes of this Customer Agreement (as defined below), the following terms shall have the respective meanings set forth below:


    1. DEFINITIONS
      1. "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).
      2. "Confidential Information" shall mean, collectively, all confidential or proprietary information and data that (a) is provided by or on behalf of Pure to the Customer or by Brenntag to the Customer under or in connection with this Customer 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 Customer 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 Customer can establish by written documentation: (i) is known to the Customer 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 Customer 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 Customer (each, a "Confidentiality Exception").
      3. "CFS" shall mean the Confidential Statement of Formula for SDC filed by Pure with the EPA in the United States (as amended from time to time).
      4. "Effective Date" shall mean the date on which the Customer selects the "Yes, I Agree with the Terms and Conditions" box located at the bottom of this page.
      5. "EPA" shall mean the United States Environmental Protection Agency, or any successor entity thereto.
      6. "FDA" shall mean the United States Food and Drug Administration, or any successor entity thereto.
      7. "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.
      8. "Field" shall mean each of the fields specified in Schedule 1 under the heading "Field".
      9. "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.
      10. "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 Customer, 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)
      11. "Pure IP Rights" shall mean, collectively, the Pure Know-How Rights and Pure Patent Rights.
      12. "Pure Know-How Rights" shall mean, collectively, all trade secret and other know-how rights regarding the Pure Technology.
      13. "Pure Marks" shall mean, collectively, (a) "Pure Bioscience", (b) "Silvérion 2400®", (c) "Powered by SDC®", (d) "Protected by SDC&trade", and (e) such trademarks, trade names, designs and markings in each case that are owned or licensed by Pure and designated from time to time in writing by Pure for use by Brenntag and/or the Customer under this Customer Agreement in connection with the promotion, marketing, sale and distribution of Products for use in the applicable Field.
      14. "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.
      15. "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.
      16. "Pure Technology Supported Patent Rights"
      17. "Registration" 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.
      18. "Representative" shall mean any registration, license, permit or governmental approval, other than the CSF, necessary for the purchase, distribution, promotion, marketing or sale by the Customer of any Product.
      19. "SDC" shall mean silver dihydrogen citrate manufactured and sold by or on behalf of Pure.
      20. "SDC Bulk Concentrate" shall mean the bulk form of SDC (at a concentration of 2400ppm).
      21. "Territory" shall mean, with respect to each Field, the applicable territory specified in Schedule 1 under the heading "Territory".
      22. "Third Party" shall mean any Person other than Pure, Brenntag, the Customer and their respective Affiliates.
    2. LICENSE GRANTS
      1. Limited License to the Customer
        1. On the terms and conditions of this Customer Agreement, Pure hereby grants to the Customer a nonexclusive license (without the right to grant sublicenses) under the Pure IP Rights in the Territory to develop, make, have made, use, offer for sale, sell and import Products for use in the applicable Field in the applicable Territory. Such license is subject to the reservation by Pure of any and all rights not otherwise expressly licensed by Pure to the Customer.
        2. The Customer shall not, directly or indirectly, (a) use the Pure Technology or Pure IP Rights for any other use, (b) resell or otherwise transfer SDC (other than in a Product) to any Third Party other than a transfer to a permitted subcontractor in accordance with Section 2.1.3, or (c) reverse engineer SDC or the other Pure Technology, or determine or attempt to determine the composition, production or characteristics thereof.
        3. The Customer shall have the right to engage one or more subcontractors to develop, make, have made, use, offer for sale, sell and import Products for use in the applicable Field in the applicable Territory, in each case solely for the benefit of the Customer; provided, however, that (a) each such subcontractor shall be subject to the terms and conditions of this Customer Agreement to the same extent as the Customer and to the same extent as if an original signatory hereto; (b) the Customer shall remain fully responsible for all of such subcontractors' actions or omissions; and (c) if the Customer becomes aware of an actual or alleged violation of this Customer Agreement by a subcontractor, the Customer immediately shall notify Pure and Brenntag in writing of such violation and shall cure such violation. Without limiting the generality of the foregoing, in the event of such violation by a subcontractor, the Customer (i) immediately shall notify such subcontractor in writing of any such violation, (ii) shall conduct an investigation of any such violation, and (iii) shall suspend further transfer of SDC to such subcontractor upon becoming aware of any actual violation that is not promptly cured to Pure's satisfaction.
      2. Grantback License to Pure This Customer Agreement shall not restrict Pure's freedom to develop and commercialize the Pure Technology. The Customer 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.
      3. No Implied Licenses Only licenses and rights expressly granted herein shall be of legal force and effect. No license or other right shall be created hereunder by implication, estoppel or otherwise.
    3. CUSTOMERS'S OBLIGATIONS
      1. Results Periodically, as reasonably requested by Pure, the Customer 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.
      2. Marketing and Promotion The Customer shall cause all Product labels, and all marketing, promotional, sale and other materials regarding each Product (including without limitation all warnings and instructions) to comply with all applicable laws, rules, regulations and orders.
      3. Registrations With respect to each Product, the Customer shall, at its sole expense, (a) obtain any Registration, and conduct all applicable testing related thereto, that is necessary to permit the purchase, distribution, promotion, marketing or sale of such Product for use in the applicable Field, (b) comply with all registration requirements therefor, and (c) comply with all applicable governmental laws, rules, regulations and orders. The Customer shall provide Pure with a copy of all Registrations and applications therefor.
      4. Conduct of Business The Customer shall conduct its business in a manner that reflects favorably at all times on Brenntag, Pure, SDC and the Pure Technology and the good name, goodwill and reputation of Pure. Without limiting the generality of the foregoing, the Customer shall (a) avoid deception, misleading or unethical practices that are or might be detrimental to Pure or the public, including but not limited to disparagement of Pure, SDC or the Pure Technology, (b) not publish or employ, or cooperate in the publication or employment of any misleading or deceptive advertising material, and (c) make no representations, warranties or guarantees with respect to the specifications, features or capabilities of SDC or the Pure Technology other than as expressly authorized in writing by Pure.
      5. Compliance with the Laws The Customer shall comply with all laws, regulations and guidelines applicable to the Customer's use of the Pure Technology.
    4. COVENANTS OF BRENNTAG AND PURE
      1. Data and Information Pure or Brenntag shall provide the Customer at no charge with such data and information regarding SDC Bulk Concentrate as is available to Brenntag and to the extent it has the right to provide such data and information to the Customer, and shall execute (or cause Pure to execute) such certificates and other instruments, in each case as reasonably necessary to assist the Customer in obtaining all necessary Product registrations. Notwithstanding anything to the contrary in this Customer Agreement, neither Brenntag nor Pure shall have any obligation to provide the Customer with any technology, data or information related to the manufacture of SDC.
      2. Technical Assistance ure or Brenntag shall provide the Customer at no charge with reasonable technical assistance regarding the Products as Pure or Brenntag (as applicable) deems appropriate in its sole discretion.
    5. INTELLECTUAL PROPERTY RIGHTS
      1. Ownership The Customer hereby acknowledges and agrees that Pure is the sole owner or licensee of the Pure Technology, Pure IP Rights and Pure Marks. The Customer hereby assigns and transfers to Pure all right, title and interest therein and thereto.
      2. 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 and the Pure Marks. Pure shall have no obligation to prepare, file, register, maintain, defend or enforce the Pure IP Rights or the Pure Marks.
      3. Trademarks
        1. Subject to the terms and conditions of this Customer Agreement, the Customer shall have the right to determine the names and trademarks to use in connection with the promotion, marketing and sale of Products for use in the applicable Field; provided, however, that the Customer shall include the Pure Marks on all packaging, labeling and marketing and promotional materials regarding any Products, all in accordance with such instructions and policies as established, from time to time, by Pure therefor.
        2. On the terms and conditions of this Customer Agreement, Pure hereby grants to the Customer a non-exclusive license (without the right to grant sublicenses) to use the Pure Marks solely for the promotion, marketing, offering to sell, selling and distribution of the Products for use in the applicable Field.
        3. The Customer shall not (a) alter or modify any Pure Marks, (b) use any Pure Marks, or any mark, name, word, title, expression, trademark, design or marking confusingly similar thereto, as part of a corporate or business name or in any other manner whatsoever, or (c) register any trade mark or trade name (including any company name) which is identical to or confusingly similar to or incorporates any trade mark or trade name which Pure or any associated company owns or claims rights in. Any goodwill associated with any Pure Marks affixed or applied or used in connection with the Products shall accrue to the sole benefit of Pure.
    6. PURCHASE ORDERS
      1. Purchase Orders The terms of any purchase order or other document submitted by the Customer to Brenntag shall not be binding except as necessary to designate specific quantities of SDC Bulk Concentrate, requested delivery date, price, delivery destination and other similar terms that may vary from order to order. The terms of this Customer Agreement shall be incorporated in all purchase orders. The terms and conditions contained in any purchase order or other document supplied by the Customer are expressly rejected by Brenntag and superseded by this Customer Agreement. Purchase orders shall not be binding unless and until accepted by Brenntag in writing.
    7. WARRANTIES
      1. Limited Warrantt Pure warrants that SDC Bulk Concentrate delivered to the Customer pursuant to this Customer Agreement shall conform with the applicable Specifications and shall be manufactured in compliance with applicable laws and regulations in the country in which manufactured. The foregoing warranty shall not apply if any SDC Bulk Concentrate has been subjected to physical abuse, misuse, abnormal use, or use not consistent with Pure's published directions, fraud, tampering, unusual physical stress, negligence or accidents.
      2. DISCLAIMERS OTHER THAN AS EXPRESSLY WARRANTED UNDER SECTION 7.1, SDC IS PROVIDED "AS IS." NEITHER PURE NOR BRENNTAG PROVIDES ANY WARRANTY OF ANY KIND TO THE CUSTOMER. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, BRENNTAG AND PURE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PURE TECHNOLOGY, AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
      3. LIMITATION OF LIBALITY IN NO EVENT SHALL BRENNTAG OR PURE BE LIABLE TO THE CUSTOMER 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. BRENNTAG'S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THIS CUSTOMER AGREEMENT OR THE PURE TECHNOLOGY SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID BY THE CUSTOMER TO BRENNTAG DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO A CLAIM AGAINST BRENNTAG FOR SDC BULK CONCENTRATE SOLD TO BY BRENNTAG TO THE CUSTOMER FOR USE PURSUANT TO THE TERMS OF THIS CUSTOMER AGREEMENT. PURE'S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THIS CUSTOMER AGREEMENT OR THE PURE TECHNOLOGY SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID BY BRENNTAG TO PURE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO A CLAIM AGAINST PURE, FOR SDC BULK CONCENTRATE RESOLD BY BRENNTAG TO THE CUSTOMER FOR USE PURSUANT TO THE TERMS OF THIS CUSTOMER AGREEMENT.
    8. CONFIDENTIALITY
      1. Confidential Information The Customer 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 Customer's directors, officers, employees, consultants and authorized subcontractors, to the extent such disclosure is reasonably necessary in connection with the Customer's activities as expressly authorized by this Customer Agreement. To the extent that disclosure to any person is authorized by this Customer Agreement, prior to disclosure, the Customer 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 Customer Agreement. The Customer shall notify Pure promptly upon discovery of any unauthorized use or disclosure of the Confidential Information.
      2. Permitted Disclosures The confidentiality obligations under this Section 8 shall not apply to the extent that the Customer 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 Customer 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.
    9. REMEDIES
      1. Confidential Information The Customer 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 Customer 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 Customer Agreement, without the necessity of posting any bond or other security. The Customer shall notify Pure and Brenntag in writing immediately upon the Customer's becoming aware of any such breach or threatened breach.
      2. Pure Technology The Customer 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 Customer 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 Customer Agreement, without the necessity of posting any bond or other security. The Customer shall notify Pure and Brenntag in writing immediately upon the Customer's becoming aware of any such breach or threatened breach.
    10. INDEMNITY INSURANCE
      1. Indemnity The Customer 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 Customer Agreement by or on behalf of the Customer and/or its subdistributors, (b) any negligent or intentional act or omission by or on behalf of the Customer and/or its subdistributors in the performance of its activities contemplate by this Customer Agreement, (c) any misrepresentations by the Customer, or (d) any violation by the Customer (or any of its employees or agents) of, or failure to adhere to, any applicable law, regulation or order in any country.
      2. Insurance The Customer shall maintain general commercial liability insurance, including contractual liability insurance and product liability insurance against claims regarding its activities contemplated by this Customer Agreement, in such amounts as it customarily maintains for similar products and activities. The Customer shall maintain such insurance for so long as it maintains insurance for itself covering such activities.
    11. TERM AND TERMINATION
      1. Term Unless terminated earlier or renewed pursuant to this Section 11, or otherwise mutually agreed in writing by Brenntag, Pure and the Customer, the term of this Customer Agreement shall expire on December 31 of the calendar year during which the Effective Date occurs. This Customer Agreement shall renew annually until December 31 of each subsequent calendar year, unless prior to December 31 of the then current calendar year (a) Pure provides written notice of termination to Brenntag and the Customer, or (b) Brenntag provides written notice of termination to Pure and the Customer, or (c) the Customer provides written notice of termination to Pure and Brenntag.
      2. Termination Either Pure or Brenntag shall have the right to terminate this Customer Agreement upon or after the material breach of this Customer Agreement by the Customer if the Customer has not cured such material breach within thirty (30) days after receipt by the Customer of written notice thereof. This Customer Agreement shall terminate upon the effective date of termination of (a) the agreement between Pure and Brenntag pursuant to which Pure grants to Brenntag the right to resell SDC Bulk Concentrate hereunder, or (b) any agreement between Brenntag and the Customer to which this Customer Agreement relates.
      3. Effect of Expiration or Termination Expiration or termination of this Customer Agreement shall not relieve the Brenntag or the Customer of any obligation accruing prior to such expiration or termination. The provisions of Sections 2.1.2, 2.2, 2.3, 5, 7.2, 7.3, 8, 9, 10, 11.3 and 12 shall survive the expiration or termination of this Customer Agreement.
    12. MISCELLANEOUS
      1. Governing Law and Venue This Customer 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 Customer 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 Customer Agreement or the subject matter thereof.
      2. 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.
      3. Assignment Neither this Customer Agreement nor any right or obligation hereunder may be assigned or delegated, in whole or part, by the Customer without the prior express written consent of Pure. Any permitted assignee shall assume all obligations of its assignor under this Customer Agreement. Any purported assignment in violation of this Section 12.3 shall be void.
      4. 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 Customer Agreement or the transactions contemplated thereby. The Customer shall not act as an agent or legal Representative, nor shall the Customer have any right or power to act for or bind Pure in any respect or to pledge its credit.
      5. 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 Customer Agreement.
      6. 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 Customer 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.
      7. 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.
      8. 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 Customer 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 Customer Agreement with such provisions. In case such provisions cannot be agreed upon, the invalidity of one or several provisions of this Customer Agreement shall not affect the validity of this Customer Agreement as a whole, unless the invalid provisions are of such essential importance to this Customer Agreement that it is to be reasonably assumed that the parties would not have entered into this Customer Agreement without the invalid provisions.
      9. Affiliates The Customer entity that has executed, or otherwise accepted this Customer Agreement (a) hereby represents and warrants that all of its Affiliates within the definition of the Customer shall be bound by the terms and conditions of this Customer Agreement as if each were an original signatory to this Customer Agreement, and (b) shall be jointly and severally liable for all acts and omissions of such Affiliate in connection with this Customer Agreement.
      10. Complete Agreement This Customer Agreement constitutes the final expression of the agreement between Customer, Brenntag and Pure with respect to the subject matter hereof and a complete, fully integrated and exclusive statement of their agreement in this regard and there are no understandings, agreements, covenants, representations or warranties of any kind, express or implied, not expressly set forth herein. No provision of any purchase order or other document issued by Customer will alter or add to the terms of this Customer Agreement, and any such provision or modification will be void and of no effect. No modification of this Customer Agreement by Customer will be binding unless it is in writing and is signed by an authorized representative of Pure and Brenntag, and no modification of this Agreement shall be effected by the parties' course of dealing, usage, or trade custom. In addition, no application of §2.207 of the Uniform Commercial Code (or its local equivalent) to 'knock out" or otherwise modify, amend, supplement or supersede any terms or conditions of this Customer Agreement, shall have any effect and is expressly rejected. By taking delivery of SDC Bulk Concentrate , Customer shall be conclusively deemed to have accepted and assented to the terms and conditions of this Customer Agreement. In the event that Customer and Brenntag engage in any electronic transactions, including, but not limited to, electronic data interchange or facsimile exchanges, such electronic exchanges shall be considered as valid and legally binding and shall be subject to the terms and conditions of this Customer Agreement.


    SCHEDULE 1

    FIELD AND TERRITORY

    FIELD TERRITORY
    Personal Care Field Worldwide
    Preservative Field Worldwide


    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 SELECTING THE "YES, I AGREE WITH THE TERMS AND CONDITIONS" BOX BELOW, THE CUSTOMER ACKNOWLEDGES THAT 1) THE INDIVIDUAL SELECTING THE BOX HAS READ AND REVIEWED THIS CUSTOMER AGREEMENT IN ITS ENTIRETY, (2) THE INDIVIDUAL SELECTING THE BOX 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.



 

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