THIS WEBSITE MATERIALS ACCESS AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("RECIPIENT," “YOU” OR “YOUR”) AND CTK BIOTECH, INC. ("COMPANY"). BY CLICKING THE "I ACCEPT" BUTTON,” RECIPIENT ACKNOWLEDGES THAT RECIPIENT HAS REVIEWED AND ACCEPTS THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL “RECIPIENT” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “RECIPIENT” REFERS TO THAT ENTITY AND ALL SUCH ENTITY’S USERS ACCESSING THE WEBSITE MATERIALS (AS DEFINED BELOW). IF RECIPIENT DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE WEBSITE MATERIALS. COMPANY MAY MAKE CHANGES TO THE WEBSITE MATERIALS AT ANY TIME. IN ADDITION, COMPANY MAY MAKE CHANGES TO THIS AGREEMENT AT ANY TIME, AND SHALL PROVIDE EMAIL NOTICE OF SUCH CHANGES TO RECIPIENT REQUIRING RECIPIENT TO AGREE TO SUCH REVISED AGREEMENT.
A. Company and Recipient are parties to an agreement for Recipient to purchase Company’s products from Company, such as a distribution agreement or a supply agreement (the “Product Agreement”).Pursuant to the Product Agreement, it is contemplated that Recipient will resell the products to end-user customers of Recipient (the “Customers”).
B. Company owns and maintains a website located at www.ctkbiotech.com (the “Website”), through which Company may provide password protected access to certain of Company’s promotional, technical and other proprietary materials (collectively, the “Website Materials”).
C. In connection with the Product Agreement and the services to be provided by Recipient thereunder and to the Customers, Recipient desires to receive, and Company agrees to provide to Recipient, access to the Website Materials pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Passcode; Passcode Protection. Upon Company’s receipt of this Agreement signed by Recipient, Company shall provide to Recipient a confidential, unique passcode to be used by Recipient to access the Website Materials through the Website (the “Passcode”). Recipient shall maintain the confidentiality of the Passcode and shall be responsible for all activities that occur using Recipient’s Passcode. Recipient shallsafeguard and shall not share the Passcode, or let any third party access the Passcode, or do anything else that might jeopardize the security of the Passcode. Recipient shall notify Company in the event the Passcode is lost, stolen, disclosed to an unauthorized third party, if there is any unauthorized use of the Passcode on theWebsite, or if Recipient knows of any other breach of security in relation to the Website.
2. Access to and Use of Website Materials. Company hereby grants Recipient a limited, personal, non-exclusive, and non-transferable license to access and use the Website Materials using the Passcode, solely for Recipient’s internal reference and educational purposes, and solely in furtherance of Recipient’s performance of the Product Agreement. Recipient may make a reasonable number of copies of the Website Materials for such internal use,provided that Recipient copies, retains, and includes on any such copy of the Website Materials all copyright, confidential, and/or other proprietary notices contained on the Website Materials.
a. Recipient shall not, and shall not permit or authorize any third party, to (i) distribute, modify, edit, adapt, or create derivative works of the Website Materials, (ii) use the Website Materials for the benefit of any third party, (iii) remove, obscure, or alter any copyright and/or other proprietary notices contained on or in the Website Materials, or (iv) transfer, resell or sublicense the Website Materials.
b. With respect to any product specifications, product inserts, or other product descriptions containing information regarding the composition of Company’s products that Company may include in the Website Materials (collectively, the “Website Technical Information”), Recipient shall not furnish to any Customer or prospective customer a copy of the Website Technical Information from the Website, since such information may be out-dated and obsolete. Recipient understands that Company will include with the packaging for delivered products the most current and accurate product specification, inserts, and literature; which may vary from the Website Technical Information. Therefore, Recipient shall not (i) use such Website Technical Information to perform any tests, or (ii) furnish such Website Technical Information to any Customer or third party.
4. Confidentiality. Recipient agrees that the Website Materials are proprietary to Company. Recipient acknowledges that the Website Materials incorporate trade secrets involving designs, concepts, information, techniques, algorithms, and processes developed by Company, which are secret, confidential and not generally known to the public, and which are the product of Company’s own expenditure of time, effort, money and creative skills. Recipient will not disseminate or in any way disclose any Website Materials to any person, firm, business or governmental agency or department. Recipient shall treat and protect all Website Materials with the same degree of care as Recipient accords to Recipient’s own confidential information, but in no case shall Recipient use less than reasonable care. Recipient may disclose Website Materials only to those of its employees and independent contractors who have a need to know the information to assist Recipient with the performance of Recipient’s obligations under the Product Agreement. Recipient certifies that each of its employees and independent contractors will have agreed, either as a condition of employment or in order to obtain the Website Materials, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Recipient under this Agreement.Recipient shall immediately give notice to Company of any unauthorized use or disclosure of the Website Materials. Recipient shall assist Company in remedying the unauthorized use or disclosure of the Website Materials. For the avoidance of doubt, Recipient shall be fully responsible and fully liable for any act, omission or breach of this Agreement by its employees, agents, and contractors as if such act, omission or breach was an act, omission or breach by Recipient.
5. Ownership and Return of Website Materials. All Website Materials, including all intellectual property and proprietary rights included or embodied therein, are the sole and exclusive property of Company; and no license or other rights to Website Materials is granted or implied hereby. This Agreement does not grant Recipient any rights to patents, copyrights, trade secrets, tradenames, trademarks (whether registered or unregistered) or any other rights, franchises or licenses in respect to the Website Materials, whether express, implied or otherwise. All rights not expressly granted herein are reserved. Within five (5) days after any request by Company, Recipient shall destroy or deliver to Company, at Company’s option, (a) all Website Materials or copies thereof and (b) all materials and items in Recipient’s possession or control that contain or disclose any Website Materials. Recipient will provide Company a written certification of Recipient’s compliance with Recipient’s obligations under this Section. The parties agree that, for a period of one (1) year after any termination of this Agreement, Company shall have the right to inspect Recipient on reasonable notice and during regular business hours to ensure compliance with this Section.
6. Term. Either party to this Agreement may terminate this Agreement without cause or for any reason upon thirty (30) days written notice to the other. This Agreement will terminate automatically upon any termination of the Product Agreement. Sections 3 (Restrictions), 4 (Confidentiality), 5 (Ownership and Return of Website Materials), 7 (Disclaimer of Warranties) through 16 (Counterparts), and this survival provision shall survive such termination or other expiration of this Agreement. In any event, this Agreement will terminate upon termination of the Distribution Agreement. Promptly upon termination of this Agreement, Recipient shall immediately cease all access and use of the Website Materials. Recipient shall destroy or deliver to Company, at Company’s option, (a) all Website Materials or copies thereof and (b) all materials and items in Recipient’s possession or control that contain or disclose any Website Materials. Recipient will provide Company awritten certification of Recipient’s compliance with Recipient’s obligations under this Section.
7. DISCLAIMER OF WARRANTIES. THE WEBSITE MATERIALS ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. COMPANY HEREBY DISCLAIMS ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR THAT THEY ARE FREE FROM ANY DEFECTS, PATENT OR LATENT, OR THAT THE WEBSITE MATERIALS WILL BE CURRENT OR UP TO DATE.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS, SAVINGS, GOODWILL OR BUSINESS OPPORTUNITY, LOSS OF USE OR INTERRUPTION OF BUSINESS OR LOSS OF DATA) ARISING CONCERNING THE WEBSITE MATERIALS,AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. No Assignment. Recipient shall not assign its rights, or delegate any performance, under this Agreement without the prior written consent of Company. Any purported assignment of rights or delegation of performance in violation of this paragraph is void.
10. Injunctive Relief. A breach of this Agreement will cause irreparable and continuing damage to Company for which money damages are insufficient, and Company is entitled to injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages if appropriate), without the need to post a bond.
11. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other address as either party may provide in writing.
12. Governing Law; Forum; Legal Fees. The laws of the United States of America and the State of California govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in San Diego County, California, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of the federal or state courts located in San Diego County, California, personal jurisdiction will be non-exclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction. If a proceeding is commenced to resolve any dispute that arises between the parties with respect to the matters covered by this Agreement, the prevailing party in that proceeding is entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs, in addition to any other relief to which that prevailing party may be entitled.
13. Severability. If a court of law holds any provision of this Agreement to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected.
14. Waiver; Modification. If Company waives any term, provision or Recipient’s breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by Company. No waiver shall constitute a waiver of any other or subsequent breach by Recipient. This Agreement may be modified only if authorized representatives of both parties consent in writing.
15. Entire Agreement. This Agreement constitutes the final and exclusive agreement between the parties regarding the Company Website Materials. This Agreement supersedes all agreements, whether prior or contemporaneous, written or oral, concerning access to, use and treatment of the Website Materials.
I hereby acknowledge, agree and declare that I have read and understand the terms and conditions of this Website Materials Access Agreement and I represent, warrant and covenant that I am authorized to bind my company to such Agreement.