BOTRISTA EQUIPMENT AND SUPPLY PURCHASE AGREEMENT

        THIS BOTRISTA EQUIPMENT AND SUPPLY PURCHASE AGREEMENT (“Agreement”) is effective as of the Initial Order effective date (the “Effective Date”) by and between Botrista Technology, Inc., a Delaware corporation (“Botrista”), and the customer identified in the Initial Order (“Customer”) (collectively, the “Parties” and each, a “Party”). Capitalized terms in this Agreement have the meanings set forth in Exhibit A attached hereto or as otherwise indicated in this Agreement or the Initial Order.

 

Equipment, Consumables and Services.

                   Installation. Botrista or its designee will have the sole right to install and set up the Equipment at the Site and may refuse to install the Equipment at the Site, in its reasonable discretion. Botrista is not responsible for (and Customer or its designee will be solely responsible and liable for) preparing, setting up, adjusting, modifying, or certifying the Site (including any electrical outlets, waterlines, or drain lines) to ensure it complies with the Site Requirements. Prior to installation of the Equipment at the Site: (i) Customer will pay Botrista the Equipment fee listed in the Initial Order (“Equipment Fee”) and all delivery, installation, and setup fees set forth in the Initial Order (collectively, “Installation Fees”); and (ii) Customer will deliver all documentation and information requested by Botrista that shows the Site complies with the Site Requirements. Customer will promptly reimburse Botrista for any costs and expenses incurred by Botrista if Botrista is unable to install and set up the Equipment at the Site due to Customer’s failure to comply with the Site Requirements. Upon Customer’s payment of the Equipment Fee and Installation Fees, Botrista or its designee will schedule a day and time to install the Equipment at the Site during Business Hours and Customer will cooperate with and assist Botrista or its designee during installation and setup of the Equipment.

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              Consumables, Accessories, and Supplies. In consideration of the prices and other items offered by Botrista under this Agreement, Customer will exclusively purchase from Botrista or its designated or permitted suppliers or distributors all Consumables [(made available by Botrista or its designated or permitted suppliers or distributors)] for all Products. Other than the Equipment, Consumables, Accessories, and Services purchased from Botrista, Customer will provide all other necessary utilities (water, electricity, Wi-Fi, drain, etc.), equipment, supplies, materials and personnel at the Site at its own expense.

 

                   Software Services. At any time during the Term, Customer may purchase a subscription to the Software Services subject to the terms and conditions set forth in Exhibit C. In order for Botrista to provide the Software Services, Customer must: (a) provide and maintain, at all times and at no cost to Botrista, all Internet connectivity, hardware, equipment, applications, and other components and parts necessary to access the Software Services over the Internet; and (b) provide Botrista with Internet and physical access to the Equipment.

 

                  Support Services. Subject to Botrista’s Warranty (defined below) obligations set forth in Exhibit E and Customer’s compliance with this Agreement, Botrista will provide, at no additional charge, the standard support services set forth in Exhibit D. Customer may purchase a subscription to the enhanced support services set forth in Exhibit D (subject to the terms and conditions set forth therein) by requesting (email will suffice) such services from Botrista on or within forty-five (45) days after the Effective Date. All repairs and maintenance must be performed only by Botrista or by service providers or designees authorized by Botrista. Subject to Botrista’s obligation to provide the Support Services (if any) and the Warranty (defined below), Botrista may charge Customer for all support, service, repair, and other maintenance fees at Botrista’s then-current rates.

 

2.       Pricing, Payments, Orders, and Returns.

                     Pricing. Customer may purchase the Consumables, Accessories, and Services according to the pricing schedules set forth in the Initial Order. Botrista may, upon providing Customer thirty (30) days’ prior written notice (via email, the Equipment user interface, or other means will suffice): (i) on a calendar year basis, increase the price for Consumables and Accessories by up to five percent (5%); and (ii) at any time, in Botrista’s sole discretion, modify the Services fees. Notwithstanding the foregoing, in the event of an increase in a component of Botrista’s cost of goods, manufacture, or delivery, or increase in taxes, deposits and other government related fees, Botrista may increase prices in excess of five percent (5%) to cover such increased costs or fees. 

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                 Orders for Consumables and Accessories. Customer may place Orders in a manner designated by Botrista from time to time. Customer hereby authorizes (and will not contest the authority of) any Customer personnel to place Orders through the Equipment user interface, or any other method designated by Botrista. Each Order is final and binding on Customer upon placing the Order and Customer may not cancel or reschedule any Order without Botrista’s prior written consent. Botrista’s acceptance of an Order will be deemed to have occurred only when Botrista issues an invoice corresponding to such Order. The terms and conditions of this Agreement with respect to the subject matter hereof, will prevail notwithstanding any different or additional terms and conditions of any purchase order or other form for purchase or payment submitted by Customer to Botrista, all of which are hereby rejected. Delivery dates provided by Botrista or with or on an Order or invoice are only estimates and Botrista’s acceptance of an Order or issuance of an invoice does not constitute a guarantee by Botrista that the applicable Consumables or Accessories will be delivered in full by the stated delivery dates. All Consumables and Accessories will be delivered to Customer FOB (UCC) Botrista’s facility, freight prepaid by Botrista and charged back to Customer on invoice. Title and risk of loss of all Consumables and Accessories passes to Customer upon tendering such to the carrier. All prices are exclusive of any shipping costs and applicable taxes, which will be added to each Order and be payable by Customer. For the avoidance of doubt, all Orders placed by Customer will be deemed to have been placed pursuant to this Agreement.

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                   Invoicing and Payment. The Equipment Fee and all Installation Fees are due on the Effective Date. Customer will pay all fees and other charges for each Order within thirty (30) days following the date of the invoice issued by Botrista. Customer will pay all Services fees for the first month of service (prorated as applicable) on the date Customer enrolls in the Services or Botrista activates the Services, whichever is earlier; and thereafter, Customer will pay all Services fees in advance at the end of each month for the Services provided or otherwise made available during the following month. All fees are non-refundable and non-cancelable, except as expressly provided in this Agreement or the Initial Order. Customer hereby authorizes Botrista to charge and debit Customer’s business bank account for any amounts due under this Agreement in accordance with the ACH Form. Any amount due under this Agreement that remains unpaid for thirty (30) or more days after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of 1.5% per month or the maximum rate permitted by law; and Botrista may, in its sole discretion: (a) refuse to accept and withhold any Orders until Customer pays such unpaid amounts and interest; (b) suspend any Services until Customer pays such unpaid amounts and interest; or (c) terminate any Services for any such unpaid amounts and interest. Customer will pay Botrista all costs and expenses of collection (including attorneys’ fees) incurred by Botrista for collecting any amounts past due under this Agreement.

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                 Returns and Buy-Backs. Customer may return the Equipment and Botrista will refund Customer the Equipment Fee (the “Refund”); provided that Customer: (i) submits a return authorization request within forty-five (45) days following the date the Equipment is installed at the Site (“Return Period”); (ii) allows Botrista to inspect the Equipment at the Site during Business Hours; (iii) will only permit Botrista or its designee to uninstall, package, and ship the Equipment; (iv) will be charged, and such amounts will be deducted from the Refund, (a) a restocking fee of three thousand dollars ($3,000), (b) all costs, expenses, and fees incurred by Botrista for the handling, de-installation, packaging, and shipping costs of the Equipment, and (c) for any damage or repairs to, or loss of the Equipment or any parts thereof; and (v) will not be refunded for any taxes (including any sales tax). Botrista will issue the Refund after (I) the Equipment has been returned to Botrista’s facility of choice and (II) Botrista has had a reasonable time to inspect and repair (as applicable) the Equipment. After the Return Period and within three (3) years after the Effective Date, upon Customer’s request, Botrista may in its sole discretion buy-back the Equipment for two thousand dollars ($2,000 USD); provided that Botrista or its designee has the sole right: (A) to inspect such Equipment at the Site during Business Hours; and (B) uninstall, package, and ship the Equipment. Botrista does not accept returns of or refund any amounts for any Consumables delivered to Customer. Botrista will accept returns of Accessories within thirty (30) days following the delivery of such Accessories; provided that: (1) such Accessories are unopened, unused, and in a form acceptable to Botrista; and (2) Customer ships the Accessories DDP (Incoterms 2020) to the address identified by Botrista. The Agreement will automatically terminate upon Customer’s return or Botrista’s buy-back of the Equipment as set forth in this Section 2.4.

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Customer Obligations.

                    Promotions. Customer will position digital and print signage for the Products provided by Botrista pursuant to Botrista’s instructions, and in any event at all times in such a manner that the advertising message for the advertising campaign as directed by Botrista is in no way obscured (electronically or otherwise) and is clearly visible to the general public and media. Customer will, at all times, prominently list the Products on any and all menu, menu boards, and other customer materials located or provided at the Site and all Equipment will be prominently identified with the appropriate Botrista Marks.

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                   Machine Usage Data. Customer acknowledges that the Equipment will automatically collect, generate, and send to Botrista usage and other data and information, including drink Crafting history and timestamps, operator interactions with user interface, user experience, maintenance, cleaning and sanitizing history, and machine telemetry (all such information, “Usage Data”). Customer may not access or restrict Botrista’s access to the Usage Data. Botrista may use the Usage Data to operate, improve and support the Equipment, user experience and user interface, analyze the usage of the Equipment and compliance with the Equipment Guidelines, develop new products, ingredients and services, provide training or develop and publish benchmarks and similar informational reports or for any other lawful purpose. Botrista may transmit the Usage Data for the foregoing purposes to Botrista’s affiliates and other third parties, including to Botrista’s suppliers, service providers, consultants, contractors, manufacturers, distributors, customers and potential customers.

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                     Access Rights. TO THE EXTENT BOTRISTA OR ITS SERVICE PROVIDERS OR DESIGNEES REQUIRE ACCESS (WHETHER PHYSICALLY OR REMOTELY) TO THE SITE, EQUIPMENT, OR OTHER CUSTOMER PREMISES OR FACILITIES TO INSTALL, UPDATE, REPAIR, SUSPEND OR DISABLE (AS PERMITTED HEREIN), REPLACE, PROVIDE, OR MAINTAIN THE EQUIPMENT, SOFTWARE, OR SERVICES (OR ANY COMPONENT OR PART OF ANY OF THE FOREGOING), CUSTOMER HEREBY GRANTS BOTRISTA AND ITS SERVICE PROVIDERS AND DESIGNEES THE UNRESTRICTED RIGHT TO ENTER AND ACCESS SUCH SITE, PREMISES OR FACILITIES OR REMOTELY ACCESS THE EQUIPMENT TO PERFORM SUCH ACTIVITIES.

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                    Equipment Operations, Training, and Cleaning. Customer will follow the Equipment Guidelines. Customer is responsible for training and will train its personnel how to operate, maintain, clean, sanitize, refill and otherwise use the Equipment based on and in accordance with all Laws and the Equipment Guidelines (to the extent the Equipment Guidelines do not conflict with the Laws). Customer will only permit trained personnel to operate, maintain, clean, sanitize, refill and otherwise use the Equipment. Customer and its personnel, at Customer’s own cost and expense, may participate in Botrista’s optional training offered from time to time. Customer hereby represents that it understands the risks described in Exhibit B and irrevocably and unconditionally agrees to all the terms and conditions set forth in Exhibit B.

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                   Disposition of the Equipment. Customer will notify Botrista at least ten (10) days prior to the sale or other disposition of the Equipment to a third party and Customer will require such third party to enter into a new equipment and supply agreement with Botrista (and this Agreement will automatically terminate upon the execution of such new agreement); provided, however, that unless and until such third party enters into a new agreement with Botrista: (a) this Agreement will remain in full force and effect; (b) Customer will remain liable under this Agreement for such third party’s acts and omissions in connection with the Equipment and the Products sold to consumers; and (c) Botrista may continue to debit Customer’s business bank account in accordance with the ACH Form for any Consumables, Accessories, or Services purchased by or provided to such third party. Notwithstanding the foregoing, Customer may not sell, give, or otherwise transfer the Equipment to any third party (or its designee or agent) that competes with Botrista (as determined by Botrista in its sole discretion).

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                  Authorization Limitations and Restrictions. Whether directly or indirectly, Customer will not, and will not permit any other Person to, access, use, clean, sanitize or repair the Equipment except as expressly permitted by this Agreement. Customer covenants to use the Equipment strictly for the purpose of preparing Products pursuant to the Equipment Guidelines. For purposes of clarity and without limiting the generality of the foregoing, Customer will not attempt to: (i) copy, modify, reverse engineer, repair, replace, make available, encumber, rent, lease or sublease, assign, disassemble, decompile, decode, gain unauthorized access to or create derivative works or improvements of the Equipment, Software, the Services, or any Botrista IP; (ii) damage, destroy, disrupt, disable, impair, interfere or tamper with or otherwise impede or harm in any manner the Services, or the Software or bypass or breach any security measures provided with or on the Equipment, Software, or the Services; (iii) damage, adulterate, contaminate, degrade, dilute, or tamper with any Consumables; (iv) remove, delete, alter, obstruct or obscure any printed or on screen notices, serial numbers, tags, markings, warnings, trademarks, warranties, labels, or disclaimers on, from or provided with any Equipment, Software, the Services, Consumables, Accessories, or Botrista IP; or (v) access, disclose, or use the Equipment, Software, the Services, Consumables, Accessories, or Botrista IP in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any Laws.

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                  Reservation of Rights and Botrista Marks. As between Botrista and Customer, Botrista owns all right, title, and interest in and to the Equipment, the Software, the Services, the Usage Data, the Botrista Marks, and the Botrista IP. Other than the right to use the Equipment, the Software, the Services, Botrista Marks, Accessories, and the Botrista IP for the Crafting, promotion, production and sale of Products during the Term as contemplated hereunder, all rights in and to the Botrista IP not expressly granted to Customer in this Agreement are reserved by Botrista and nothing herein grants any license, title, interest, or other right in or to any Software, the Services, or Botrista IP, whether expressly, by implication, estoppel, or otherwise. Customer will not take or encourage any action during or after the Term that will in any way impair the rights of Botrista in and to the Botrista Marks or the goodwill inherent therein. Customer’s use of the Botrista Marks and all goodwill therein inures solely to the benefit of Botrista. Customer will ensure that the nature and quality of all services rendered by Customer in connection with the Botrista Marks, and all advertising, promotional or other uses of the Botrista Marks, will at all times: (i) conform to the quality standards and brand identity guidelines and style sheets specified by Botrista from time to time; and (ii) be in full compliance with all Laws. Botrista has the right, at all reasonable times, to inspect the manner in which Customer uses the Botrista Marks and the quality of any goods and services associated therewith. Such inspection may, at the election of Botrista, be by personal visit to Customer or by written request for information or samples; and Customer will cooperate with such inspections. Customer may (but is not obligated to) provide Botrista with suggestions, ideas, enhancement requests, or other feedback (“Feedback”). If Customer provides any such Feedback to Botrista, Customer hereby grants Botrista a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and otherwise practice such Feedback without restriction.

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Term and Termination.

                     Term. The term of this Agreement will begin on the Effective Date and will continue until the Agreement terminates as set forth herein (the “Term”).

                     

                   Termination Rights, Suspension and Effect of Termination. Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement if: (i) the other Party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured for thirty (30) days after written notice describing the breach; or (ii) the other Party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within sixty (60) days after filing. Such termination rights will be in addition to any other remedies the Parties may have available to them at Law or in equity. No termination or expiration of this Agreement will derogate from any liabilities accrued hereunder prior to such termination or expiration. BOTRISTA MAY IMMEDIATELY DISABLE OR SUSPEND CUSTOMER’S ACCESS TO OR USE OF THE EQUIPMENT, SOFTWARE, OR SERVICES IF: (A) CUSTOMER BREACHES THIS AGREEMENT; OR (B) CUSTOMER FAILS TO PAY ANY AMOUNTS DUE TO BOTRISTA UNDER THIS AGREEMENT AND FAILS TO CURE SUCH FAILURE WITHIN TEN (10) DAYS AFTER BOTRISTA NOTIFIES (EMAIL WILL SUFFICE) CUSTOMER OF SUCH FAILURE. Upon termination of this Agreement: (I) Any outstanding Orders which have not shipped will be deemed cancelled, and Botrista will refund any amounts already paid with respect to such cancelled Orders; and (II) Botrista will immediately terminate, remove access to, and cease providing all Services.

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                    Survival. Sections 2.3 (with respect to any accrued payment obligations), 2.4 (with respect to accrued payment obligations), 3.2, 3.4, 3.6,. 3.7, 4.2, 4.3, 5.1, 5.3, 5.4, 6, 7, and 8, as well as all accrued payment obligations, will remain in force after any termination or expiration of the Agreement.

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Warranties; Limitation of Liability.

                 Customer Warranties. Customer represents, warrants and covenants that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered; and (iv) it will, in its performance of its obligations hereunder, fully comply with all Laws.

 

                    Limited Warranty. The sole warranties made by Botrista for the Equipment, and Botrista’s sole obligation, and Customer’s sole remedy, with respect to the Equipment that do not conform to the express warranties made by Botrista, are set forth in Exhibit E (the “Warranty”).

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                 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EQUIPMENT, CONSUMABLES, ACCESSORIES, SOFTWARE, THE EQUIPMENT GUIDELINES, THE SERVICES, AND BOTRISTA IP AND ANY OTHER INFORMATION ARE PROVIDED BY BOTRISTA “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND; AND BOTRISTA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, AS TO ANY MATTER WHATSOEVER (INCLUDING WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE USE OF, OR THE RESULTS FROM THE USE OF, THE EQUIPMENT, THE BOTRISTA IP, ANY CONSUMABLES, ANY ACCESSORIES, THE SOFTWARE, THE SERVICES, OR THE EQUIPMENT GUIDELINES), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, OR THAT THE EQUIPMENT, ANY CONSUMABLES, ANY ACCESSORIES, THE SOFTWARE, THE EQUIPMENT GUIDELINES, THE SERVICES, THE BOTRISTA IP, OR ANY OTHER INFORMATION PROVIDED BY BOTRISTA IS OR WILL BE ACCURATE, RELIABLE, CORRECT, UNINTERRUPTED, OR ERROR-FREE. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BOTRISTA TO ANY PERSON. BOTRISTA DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES OR THE EQUIPMENT DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE.

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              Limitation of Liability. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, CUSTOMER’S UNAUTHORIZED USE OR MODIFICATION OF THE EQUIPMENT, THE SOFTWARE, THE BOTRISTA MARKS, THE SERVICES, OR BOTRISTA IP, CUSTOMER’S BREACH OF SECTION 7, CUSTOMER’S BREACH OF SECTION 3.4 OR SECTION 3.6, CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE UNDER THIS AGREEMENT, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, THE EQUIPMENT, THE SOFTWARE, THE SERVICES, CONSUMABLES, ACCESSORIES, OR THE EQUIPMENT GUIDELINES; (II) EITHER PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS CUSTOMER PAID TO BOTRISTA PURSUANT TO THIS AGREEMENT WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.

 

                Indemnification. Customer will indemnify, defend, and hold harmless Botrista and its directors, officers, employees, agents, contractors, representatives and other personnel from and against any and all actual or threatened third-party claims, actions, damages, losses, liabilities, costs and expenses, including reasonable attorneys’, experts’ and investigators’ fees and expenses, (collectively, “Actions”), to the extent arising out of or related to: (i) Customer’s failure to comply with any Laws; (ii) any damages incurred directly or by virtue of a claim made by a third party, in either case, arising out of a breach of Customer’s representations, warranties, covenants or duties arising out of, or in connection with, this Agreement; (iii) the Products Crafted using the Equipment including, the making, marketing, or sale, or recall thereof, including any alleged defects, imperfection, adulteration and/or inherent dangers (whether obvious or hidden) in the Products or the use or consumption thereof, any product liability issues or claims, the packaging or labeling of a Product, the failure of a Product to confirm to its published specifications or promotional or other informational materials, or a failure to warn; (iv) any injury, illness or death of persons, damage to property or any other damage or loss arising out of or in connection with the Products or due to Customer’s use of untrained personnel; (v) any theft or loss of, or damage (including any damage caused by a Customer’s failure to comply with the Equipment Guidelines) to the Equipment; (vi) Customer’s, use of Third-Party Consumables; (vii) Customer’s cleaning or sanitizing of the Equipment (including cleaning or sanitizing related to the use of Third-Party Consumables with the Equipment) or Customer’s failure to properly clean or sanitize the Equipment in accordance with the Laws or the Equipment Guidelines (to the extent the Equipment Guidelines do not conflict with the Laws); or (viii) any act or omission, willful or negligent, by Customer arising out of or related to the performance of its obligations and rights under this Agreement.

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Confidentiality.

                Definition of Confidential Information. As used herein, “Confidential Information” means any nonpublic or proprietary information disclosed by Botrista (“Discloser”) to the Customer (“Recipient”) (including prior to the Effective Date), whether orally or in writing, that: (i) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; or (ii) based upon the facts and circumstances of the disclosure, information that a reasonable person would consider confidential. For clarity, this Agreement, all nonpublic Botrista IP and all pricing information under this Agreement or an applicable Order, is the Confidential Information of Botrista. Confidential Information does not include any information that: (a) was publicly available prior to the time of disclosure by the Discloser; (b) becomes publicly available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient; (c) is already in the lawful possession of the Recipient at the time of disclosure, as shown by documentation; (d) is obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.

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                     Protection of Confidential Information. Recipient will: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not use any Confidential Information for any purpose outside the scope of this Agreement; and (iii) only disclose Confidential Information of the Discloser to those of its and its affiliates’ employees, contractors, and agents (“Representative(s)”) who are bound in writing by confidentiality obligations at least as protective as this Agreement and need such access for purposes consistent with this Agreement. If any Representative discloses or uses Confidential Information other than as authorized in this Agreement, Recipient will be liable to Discloser for such disclosure or use to the same extent that Recipient would have been liable had Recipient performed such unauthorized disclosure or use. Notwithstanding any language to the contrary herein, if Recipient is required to disclose Confidential Information pursuant to a valid judicial or administrative order, Recipient may make such disclosure on the condition that Recipient: (i) provides timely written notice of such order to Discloser and reasonably cooperates with any efforts by Discloser to contest or limit the scope of such order; and (ii) uses all reasonable efforts to limit the disclosure of such Confidential Information and seek a protective order or an equivalent order to prevent or protect such disclosure.

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Miscellaneous.

                    Governing Law; Jurisdiction. This Agreement and any dispute arising out of or relating to this Agreement will be governed by the laws of Delaware, without reference to its conflict of law provisions. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be within the nonexclusive jurisdiction of the state and federal courts located in the Northern District of California; and the Parties hereby consent and submit to such nonexclusive jurisdiction and waive objections to venue therein. The Parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement. ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT IS PERSONAL TO CUSTOMER AND BOTRISTA AND ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.

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                 Relationship of the Parties. Botrista (including any and all Botrista employees, agents, consultants or subcontractors), in performance of this Agreement, is acting as an independent contractor and not as an employee or agent of Customer. Botrista will have exclusive control of the manner and means of performing its obligations under this Agreement. Each Party is solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including withholding of appropriate payroll taxes), workers’ compensation, disability, health insurance, and other benefits. Nothing in this Agreement will be construed as making either Party the agent of the other Party, as granting to the other Party the right to enter into any contract on behalf of the other Party, or as establishing a partnership, franchise or joint venture between the Parties. Under no circumstances will the employees of one Party be deemed to be employees of the other Party for any purpose. No third party will be deemed to constitute a third-party beneficiary of this Agreement.

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               Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Botrista. Notwithstanding the foregoing, Customer may assign its rights and obligations under this Agreement in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control, or sale of all or substantially all of its assets related to this Agreement or similar transaction to an entity organized under the laws of a State in the United States; provided, however: (i) Customer notifies Botrista at least thirty (30) days prior to the signing of such transaction; (ii) the Customer’s purchaser, successor, transferee, assignee, or resulting entity (a) does not compete with Botrista (as determined in Botrista’s sole discretion) and (b) agrees to be bound by the terms and conditions of this Agreement. Botrista may assign, transfer or otherwise delegate this Agreement or any of its rights or obligations (in whole or in part) under this Agreement to any Person without the consent of the Customer. This Agreement inures to the benefit of and will be binding on the Parties’ permitted assignees, transferees and successors.

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            Force Majeure. Neither Party will be liable to the other Party for the nonperformance of any obligation under this Agreement (other than any payment obligation) arising from any cause beyond such Party’s reasonable control, regardless of whether such cause is foreseeable, including any: (i) act of God; (ii) flood, fire, explosion, earthquake, or natural disaster; (iii) act of terrorism, war, revolution, invasion, riot, or other civil or military disturbances or acts of public enemies; (iv) act, regulation, order, or Law of any government, civil or military authority, or any injunction of any nature; (v) embargo, blockade, tariff, or other trade restriction in effect on or after the Effective Date; (vi) national or regional emergency; (vii) epidemic, pandemic, or other contagion, including COVID-19; (viii) strike, lockout, labor dispute, stoppage or slowdown, or other industrial disturbance; (ix) casualty or accident; (x) denial of service attacks and other malicious conduct; or (xi) inability to procure, or any interruption, loss, malfunction, or shortage of, any supplies, services, products, equipment, transportation, utilities, communications, or computer software, hardware, or services.

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                Headings and Interpretation. In this Agreement: (i) the headings are for convenience of reference only and will not affect the meaning or interpretation of this Agreement; (ii) the words “herein,” “hereunder,” “hereby,” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph, Article or Section where they appear); (iii) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”; the word “including” means “including without limitation”; and “with respect to” any item includes the concept “of” such item or “under” such item or any similar relationship regarding such item; and (iv) unless expressly stated herein to the contrary, reference to a document, including this Agreement, will be deemed to also refer to each annex, addendum, exhibit, schedule, or other attachment thereto.

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             Notices. All notices under the terms of this Agreement will be given in writing and will be effective upon delivery as follows: (a) when delivered in person; (b) upon confirmation of receipt when transmitted by electronic mail to the email address specified in the Initial Order; or (c) upon receipt after dispatch by registered or certified mail, postage prepaid, or national overnight courier (with confirmation of delivery) to the address specified in the Initial Order. Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section 8.6.

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               Amendments; Waiver. An amendment of this Agreement will be binding upon the Parties only so long as it is in writing and executed by both Parties. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.

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                 Severability; Counterparts. Each provision contained in this Agreement constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part thereof) of this Agreement is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) this Agreement that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired. This Agreement may be executed simultaneously by the Parties with any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Execution of this Agreement may be accomplished by signing, including via electronic signature, and transmitting the signature page to the other Party.

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           Entire Agreement. This Agreement, together with the Exhibits attached hereto and referenced herein, constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements, or communications between them concerning the subject matter hereof.

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