AN ANALYTIC TEST
PERFORMED ON A [
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USE OF A DERMAGENOMICS CONSUMABLE OR A NUTRIGENOMICS CONSUMABLE.
1.6
"CONFIDENTIAL INFORMATION"
MEANS, AS REGARDS A PARTY (THE "RECEIVING PARTY"), (I) ALL INFORMATION PRODUCED
OR DISCOVERED BY EITHER PARTY UNDER THE RESEARCH PROGRAM (INCLUDING WITHOUT
LIMITATION, COMPILATIONS, DATA, FORMULAE, MODELS, PATENT DISCLOSURES,
PROCEDURES, PROCESSES, PROJECTIONS, PROTOCOLS, RESULTS OF EXPERIMENTATION AND
TESTING, SPECIFICATIONS, STRATEGIES AND TECHNIQUES), AND ALL TANGIBLE AND
INTANGIBLE EMBODIMENTS THEREOF OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, APPARATUS, BIOLOGICAL OR CHEMICAL MATERIALS, ANIMALS, CELLS,
COMPOSITIONS, DOCUMENTS, DRAWINGS, MACHINERY, PATENT APPLICATIONS, RECORDS AND
REPORTS) AND (II) ALL OTHER INFORMATION (INCLUDING BUT NOT LIMITED TO
INFORMATION ABOUT ANY ELEMENT OF TECHNOLOGY OR A PARTY'S BUSINESS) WHICH IS
DISCLOSED, WHETHER IN WRITING AND MARKED AS CONFIDENTIAL AT THE TIME OF
DISCLOSURE TO THE RECEIVING PARTY OR CUSTOMARILY CONSIDERED TO BE CONFIDENTIAL
INFORMATION OR BY ORAL DISCLOSURE REDUCED TO A WRITING, BY THE OTHER PARTY (THE
"DISCLOSING PARTY") TO THE RECEIVING PARTY OR TO ANY OF ITS EMPLOYEES,
CONSULTANTS, AFFILIATES, LICENSEES AND SUBLICENSEES HEREUNDER EXCEPT TO THE
EXTENT THAT THE INFORMATION DESCRIBED IN THIS SUBSECTION (II) (A) AS OF THE DATE
OF DISCLOSURE IS DEMONSTRABLY KNOWN TO, OR IN THE POSSESSION OF, THE RECEIVING
PARTY OR ITS AFFILIATES, AS SHOWN BY WRITTEN DOCUMENTATION, OTHER THAN BY VIRTUE
OF A PRIOR CONFIDENTIAL DISCLOSURE BY THE DISCLOSING PARTY OR ITS AFFILIATES;
(B) AS OF THE DATE OF DISCLOSURE IS IN, OR SUBSEQUENTLY ENTERS, THE PUBLIC
DOMAIN, THROUGH NO FAULT OR OMISSION OF THE RECEIVING PARTY OR ITS AFFILIATES;
(C) AS OF THE DATE OF DISCLOSURE OR THEREAFTER IS OBTAINED BY THE RECEIVING
PARTY OR ITS AFFILIATES FROM A THIRD PARTY FREE FROM ANY OBLIGATION OF
CONFIDENTIALITY TO THE DISCLOSING PARTY AND RIGHTFULLY IN POSSESSION OF SUCH
INFORMATION OR (D) IS INDEPENDENTLY DEVELOPED BY OR FOR THE RECEIVING PARTY OR
ITS AFFILIATES WITHOUT REFERENCE TO OR IN RELIANCE UPON ANY OF THE FOREGOING
INFORMATION AS DEMONSTRATED BY COMPETENT WRITTEN RECORDS.
1.7
"CONTROL" OR "CONTROLLED"
MEANS (A) WITH RESPECT TO TECHNOLOGY (OTHER THAN PROPRIETARY MATERIALS) AND/OR
PATENT RIGHTS, THE POSSESSION BY A PARTY OF THE ABILITY TO GRANT A LICENSE OR
SUBLICENSE OF SUCH TECHNOLOGY AND/OR PATENT RIGHTS AS PROVIDED HEREIN WITHOUT
VIOLATING THE TERMS OF ANY AGREEMENT OR ARRANGEMENT BETWEEN SUCH PARTY AND ANY
THIRD PARTY AND (B) WITH RESPECT TO PROPRIETARY MATERIALS, THE POSSESSION BY A
PARTY OF THE ABILITY TO SUPPLY SUCH PROPRIETARY MATERIALS TO THE OTHER PARTY AS
PROVIDED HEREIN WITHOUT VIOLATING THE TERMS OF ANY AGREEMENT OR ARRANGEMENT
BETWEEN SUCH PARTY AND ANY THIRD PARTY.
1.8
"DERMAGENOMICS CONSUMABLE"
MEANS ANY NUTRITIONAL SUPPLEMENT OR SKIN CARE PRODUCT OR TOPICAL DELIVERY SYSTEM
WHICH WOULD BE [
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DESIGNED TO PRODUCE A POSITIVE HEALTH BENEFIT WITH RESPECT TO WEIGHT MANAGEMENT
(I) THE MANUFACTURE, USE OR SALE OF WHICH WOULD, ABSENT THE LICENSE OR OWNERSHIP
RIGHTS GRANTED TO ACCESS HEREUNDER INFRINGE ANY CLAIM INCLUDED IN THE PROGRAM
PATENT RIGHTS OR THE