Product Terms & Conditions
THESE PRODUCT TERMS AND CONDITIONS (the “Agreement”) ARE ENTERED INTO BETWEEN BLUEWAVE TECHNOLOGIES, INC. (“BLUEWAVE”) AND THE LEGAL ENTITY THAT PURCHASED A BLUEWAVE PRODUCT (DEFINED BELOW) (SUCH ENTITY, “CUSTOMER”) ON WHOSE BEHALF THE ULTIMATE END-USER WILL USE THE BLUEWAVE PRODUCT(S). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN BLUEWAVE AND CUSTOMER. BY PLACING AN ORDER FOR, ACCESSING OR USING THE BLUEWAVE PRODUCT(S), CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO CUSTOMER’S USE OF THE DEVICE, CUSTOMER AGREES TO BE BOUND BY, THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, THEN CUSTOMER DOES NOT HAVE PERMISSION TO USE THE BLUEWAVE PRODUCT(S). The BLUEWAVE Device (“Device”) is and ozone vacuum-infusion device intended to be effective at killing SARSCoV-2 (the virus that causes COVID-19) when used in accordance with its labeled instructions for use on the Super Cycle setting. It is indicated for use on non-critical instruments and surfaces that only contact intact human skin such as prostheses and orthoses, as well as blood pressure cuffs, stethoscopes, and patient clothing.* Anticipated efficacy against SARS-CoV-2 is supported by test results demonstrating that BLUEWAVE is effective at killing methicillinresistant Staphylococcus aureus and MS2 bacteriophage.** The Device is available for the intended use stated above per FDA’s Enforcement Policy for Sterilizers, Disinfectant Devices, and Air Purifiers During the Coronavirus Disease 2019 (COVID-19) Public Health Emergency dated March, 2020. This device has not been formally cleared for this indication under a 510(k) notification (21 CFR 807). Consumable components that work in conjunction with the Device include: a Filter Cartridge to remove excess ozone after treatment, optional Scent Cartridges to infuse items with aromatics, an Extension Port Adapter, and treatment bags with appropriate diffuser attachments (collectively “Consumables”). The Device and Consumables are collectively and severally referred to in this Agreement as BLUEWAVE Product(s). * Low level disinfection of the SARS-CoV-2 virus is expected when used in accordance with instructions for use. ** In laboratory testing, BLUEWAVE achieved a > 6-log10 reduction versus methicillin-resistant Staphylococcus aureus ATCC 33591 (MRSA) on hard, non-porous stainless steel carriers and soft, porous polyester fabric. A > 3- log10 reduction was observed versus MS2 bacteriophage on hard, non-porous stainless steel carriers and soft, porous polyester fabric. Both MRSA and MS2 are expected to be more resistant to germicides than the SARS-CoV-2 virus per guidance provided in FDA’s Enforcement Policy for Sterilizers, Disinfectant Devices, and Air Purifiers During the Coronavirus Disease 2019 (COVID-19) Public Health Emergency dated March, 2020.
8. CONFIDENTIALITY Customer will treat communications regarding the Device development and BLUEWAVE’s business development as confidential unless otherwise notified by BLUEWAVE. Customer will use the same efforts to protect BLUEWAVE’s confidential information from loss or alteration, and unauthorized access, use or disclosure, that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than reasonable efforts.
9. OWNERSHIP OF INTELLECTUAL PROPERTY Customer acknowledges and agrees that: (a) as between the Parties, Bluewave solely owns all intellectual property rights in and to the Products; (b) Customer will not acquire any ownership interest in any such intellectual rights under this Agreement; (c) if Customer acquires any intellectual property rights in or to any Products (including any rights in any patent improvements relating thereto) by operation of law or otherwise such rights are hereby irrevocably assigned to Bluewave without any further consideration due to Bluewave; and (d) except for Customer’s right to use the BLUEWAVE Products in accordance with this Agreement, and certain limited licenses granted, in writing, by BLUEWAVE to Customer to use BLUEWAVE’s trademarked or copyrighted material in connection with promotional materials advertising Customer’s use of BLUEWAVE Products, the sale of BLUEWAVE Products does not grant to, convey or confer upon Customer or any Third Party any rights or licenses, whether express or implied, under any patent right, copyright or other intellectual property right of Bluewave. Customer will not take any action that reasonably could be expected to challenge, undermine or otherwise interfere with any of Bluewave’s intellectual property rights in or to the Products. 10. SEVERABILITY If any term or provision of this Agreement is deemed unenforceable by a court of competent jurisdiction, such unenforceability will not affect any other term or provision of this Agreement. Upon a determination that any term or provision is unenforceable by any court of competent jurisdiction, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 11. NO CONSTRUCTION AGAINST DRAFTER Because this Agreement is intended to provide a simplified description of the duties of both parties, the provisions of this agreement shall be construed in accordance with the fair meaning of the language used and shall not be strictly construed against either party. 12. GOVERNING LAW This Agreement will be governed in all respects by the laws of the State of Delaware, United States of America without regard to its conflict of laws principles. 13. COMPLETE AGREEMENT This Agreement, including all exhibits attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. If there is any conflict or inconsistency between this Agreement and any exhibit attached hereto, the Agreement will control to the extent of the conflict or inconsistency.