Terms of Service

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These Terms of Service (the “Agreement”) form a binding agreement between you (and, if applicable, the organization you represent, collectively, “you”, “your” and the “Customer”) and Berkeley Fermentation Science Inc., which has a registered office at 15555 E 14th Street Suite 525, San Leandro CA 94578 and does business as Berkeley Yeast (“BFS”), and describes and governs your rights and obligations in connection with Ordered Materials purchased from BFS.  The Customer and BFS may each be referred to as a “Party” or may be referred to collectively as the “Parties.”  If you do not agree to this Agreement, you are not authorized to purchase or use Ordered Materials.

1. Definitions.  As used in this Agreement, the following terms shall have the following meanings, and other terms may be defined throughout this Agreement. 

1. “Bank” shall mean storage of the Ordered Materials, or any progeny or derivatives derived therefrom for more than two weeks by means of liquid stock, agar or other solid media, lyophilization, or other means intended for long term storage.

2. "Barrel" or "BBL" shall mean a quantity equal to 31 gallons, however packaged or subdivided in any number of bottles, cans, kegs or other vessels of beer totaling 1 Barrel.  For example, 2 kegs of 0.5 Barrels each shall be deemed one Barrel.

3. "Barrel-pitch" shall mean a quantity of yeast intended to produce 1 Barrel of Product. 

4. “Confidential Information” shall have the meaning as defined herein below.

5. "Dry Yeast" shall mean any quantity of a proprietary yeast strain in active dry form, sold or provided by BFS.

6. "Liquid Yeast" shall mean any quantity of a proprietary yeast strain in the form of liquid slurry or cream yeast, sold or provided by BFS. 

7. "Non-Alc Strains" shall mean proprietary yeast strains engineered to produce beverages with an alcohol content of less than 0.5% ABV.

8. “Ordered Materials” shall mean any quantity of a proprietary yeast strain, or other materials sold or provided by BFS.

9. “Patent Right” shall mean any United States or foreign patent application that describes and claims an invention, or the equivalent of such application, including any division or continuation (including any continuation-in-part), or any Letters Patent or the equivalent thereof issuing thereon, or reissue, reexamination, or extension thereof.

10. “Product” shall mean any beverage, the manufacture, use, or sale of which, in whole or in part: (a) is the result of fermentation by or with the Ordered Materials; (b) is based upon, uses, or otherwise exploits, in-whole or in-part, BFS’ Confidential Information, and/or the Ordered Materials; and/or (c) absent a license granted hereunder would infringe, is covered by, or otherwise exploits, one or more Patent Right(s).

11. “Reporting Period” shall mean each three-month period ending March 31, June 30, September 30 and December 31.

2. Purchase of Ordered Materials.  The Customer desires to purchase Ordered Materials from BFS.  BFS supplies Ordered Materials in units of Barrel-pitch or grams or as otherwise described on the website, but other quantities may be possible upon request.  Pursuant to this Agreement, the Customer shall only use the Ordered Materials for the purpose of: brewing and selling fermented beverages (“Permitted Purpose”).  Upon acceptance of this Agreement, BFS will contact the Customer via electronic mail at an address specified by the Customer to confirm the Ordered Materials and desired properties. 

1. License.  Subject to the terms of this Agreement, BFS hereby grants to Customer the following license: a royalty-bearing non-exclusive license, without the right to sublicense, to use the Ordered Materials, including freedom to operate under any Patent Rights covering the Ordered Materials, to make, use, and sell Products for the Permitted Purpose.

3. Pricing

1. Pricing.  The price of Ordered Materials is as set forth on the BFS website at the “Pricing Page”.  

2. Small Batches (excluding Non-Alc Strains).  If Customer produces less than 1000 Barrels of Product in any one calendar year, Customer will pay the purchase price described on the Pricing Page and no additional payment is due.

3. Production at Scale (excluding Non-Alc Strains).  If Customer produces 1000 Barrels or more of Product in any one calendar year, Customer shall fall into one of three categories:

1. Customer is limited to producing up to 5 times the intended pitchable volume and pays only the purchase price described on the Pricing Page. 

2. Customer shall report and pay based on total Barrels produced at the end of each quarter ("Pay As You Go").  Rates are as set forth on the Pricing Page.

3. Customer shall report and pay based on forecasted production volume at the start of each quarter ("Prepay and Save").  Rates are as set forth on the Pricing Page. 

4. Non-Alc Strains (all volumes).  Customer will pay the purchase price described on the Pricing Page and no additional payment is due.  The volume produced with Non-Alc Strains is subject to limitations as described herein below. 

4. Payment. 

1. Invoicing for Ordered Materials.  Upon confirmation of the Ordered Materials and desired properties, BFS will provide to the Customer a written invoice of the cost and estimated delivery date for the Ordered Materials.  All Invoices shall be due upon receipt, unless otherwise stated on the invoice. 

2. Notification of 1000 BBL threshold.  Once a Customer produces 1000 Barrels of Product in any one calendar year, the Customer shall notify BFS by electronic mail.

3. Invoicing for Customers producing 1000 BBLs or more on the Pay As You Go plan.  Within thirty (30) days after the end of each quarter, Customer shall deliver reports to BFS via email using the reporting template provided by BFS as it may be updated from time to time. Reports shall state the yeast strain(s), the brand(s) produced, and the amount of Product produced by Customer.  If no Product was produced by Customer in any Reporting Period, the report shall so state.  BFS will invoice Customer based on the number of Barrels produced and the rate as specified on the Pricing Page.

4. Invoicing for Customers producing 1000 BBLs or more on the Prepay and Save plan.  On or before the first business day of each quarter, Customer will send an estimated production volume for the quarter.  BFS will invoice Customer based on the estimated volume and the rate as specified on the Pricing Page.

5. Reconciliation for Customers on the Prepay and Save plan.  At the end of each quarter, BFS and Customer will reconcile estimated production volume with actual production volume.  If the estimated volume is less than the actual volume, Customer will be invoiced for the difference.  If the estimated volume is greater than the actual volume, the cash overpayment (the actual dollar amount paid in excess) will be subtracted from the invoice for the following quarter.  Such cash overpayments will not expire.

6. Credit for Customers on the Prepay and Save plan.  Payments made for estimated volume are applied as a credit toward future yeast purchases, capped at $2,500 per quarter.  Credits expire one year after issuance and may be applied as follows:

• Liquid Yeast: Credits may cover up to 100% of the purchase price.

• Dry Yeast: Credits may cover up to 50% of the purchase price.

During quarterly reconciliation, in the case that the Customer overestimated volume, (i) the cash overpayment will be subtracted from the invoice for the following quarter; (ii) any excess credit will be subtracted from the credit for the following quarter, even if already applied; and (iii) unused credit will rollover. 

7. Audit Rights.  Customer shall maintain complete and accurate records relating to the rights and obligations under this Agreement and any amounts payable to BFS in relation to this Agreement, which records shall contain sufficient information to permit BFS to confirm the accuracy of any payments and reports delivered and compliance in all other respects with this Agreement.  Customer shall retain and make available such records for at least three (3) years following the end of the calendar year to which they pertain.  Such records shall be available to BFS upon at least fifteen (15) days’ advance written notice, for inspection during normal business hours, to verify any reports and payments made and/or compliance in other respects under this Agreement.  If any examination conducted by BFS pursuant to the provisions of this Section show an underreporting or underpayment, Customer will be invoiced for the difference.

5. Acceptance.  Upon delivery, the Customer will have five (5) business days to inspect the Ordered Materials.  If the Ordered Materials are defective, the Customer must notify BFS immediately, who in their sole discretion may retest or replace the Ordered Materials, or issue a refund of the order price for the Ordered Materials.  If Customer does not contact BFS or report a defect of the Ordered Materials within five (5) business days, Customer agrees the Ordered Materials are acceptable and accepted. 

6. Limitations and Restrictions.  

(a) Customer shall not Bank, modify, and/or distribute the Ordered Materials, or any progeny or derivatives derived therefrom (e.g., propagated yeast).  Customer shall not transfer and/or sell the Ordered Materials to any third party without prior written consent from BFS. The foregoing notwithstanding, Customer may engage contract brewers to make Product on Customer’s behalf using the Ordered Materials, provided that Customer will be liable for any breach of this Agreement by such parties, and provided further that Customer will be obligated to report Product made by such parties as to the same extent as if it were made by Customer.  If Customer engages a contract brewer to make Product on Customer's behalf, Customer shall provide to BFS the legal name and address of contract brewer.  Customer shall not reverse engineer or analyze the Ordered Materials, nor extract or isolate or determine the sequence of any nucleic acid of the Ordered Materials.  Customer hereby agrees to keep the Ordered Materials secure and confidential and not permit any third party to access, inspect, or test the Ordered Materials without prior consent from BFS.  Customer will hold the Ordered Materials in its possession with the same degree of care as its own proprietary materials, but in no event shall that degree of care be less than what is customary in industry for the same type and quantity of materials.  Neither this Agreement, nor delivery of the Ordered Materials, confers to the Customer any ownership rights or any other rights to the Ordered Materials, any progeny, derivative, or part thereof, other than the licensed right to use the Ordered Materials for the Permitted Purpose.  Customer agrees to contain and inactivate yeast prior to disposal to ensure low releases from the manufacturing/production facility.

(b) The use of Non-Alc Strains is subject to limitations.  The volume produced with Non-Alc Strains shall not exceed the intended pitchable volume, as defined by the specified barrel-pitch.

7. Confidentiality. 

1. It is anticipated that in the performance of this Agreement each Party (as applicable, each a “Discloser”) is likely to disclose to the other Party (as applicable, each a “Recipient”) certain information that the Discloser considers valuable, proprietary, and confidential.

2. “Confidential Information” shall mean any information, including but not limited to data, techniques, protocols or results, or business, financial, commercial or technical information, disclosed by Discloser to Recipient which is reasonably necessary for performance under this Agreement and is identified as confidential at the time of disclosure, or as would otherwise be recognizable to a reasonable person as confidential under similar circumstances in a commercial transaction.  The Parties acknowledge and agree that all non-public information about the Ordered Materials, such as the nucleic acid sequence of the Ordered Materials, are BFS’ Confidential Information.  Confidential Information shall not include any information to the extent (i) it is or becomes publicly available through no wrongful act of Recipient; (ii) it was known by Recipient prior to disclosure by Discloser, as evidenced by tangible records; (iii) it becomes known to Recipient after disclosure from a third party having a bona fide right to disclose it; or (iv) it is independently developed or discovered by Recipient without use of Discloser’s Confidential Information, as evidenced by tangible records.  The obligations of confidentiality and non-use set forth herein shall not apply with respect to any information that Recipient is required to disclose by applicable law, court order, or other valid legal process provided Recipient promptly notifies Discloser prior to such required disclosure, discloses such information only to the extent so required, and cooperates reasonably with Discloser’s efforts to contest or limit the scope of such disclosure.

3. Each Recipient agrees that: (i) it will not use the Discloser’s Confidential Information for any purpose other than as specified herein, including without limitation for its own benefit or the benefit of any other person or entity; and (ii) it will use reasonable efforts (but no less than the efforts used to protect its own confidential and/or proprietary information of a similar nature) not to disclose such Confidential Information to any other person or entity except as expressly permitted hereunder.

8. Liability; Assumption of Liability.  Upon delivery of Ordered Materials to the Customer, the Customer assumes all liability for damages, losses, costs, and expenses that may arise whether direct or indirect, consequential or incidental, as a direct or indirect result or consequence from use, storage, disposal, or application of the Ordered Materials. 

9. Indemnification.  Customer shall defend, indemnify and hold BFS and its affiliates and each of their respective directors, officers, employees, and agents, and their respective successors, heirs and assigns, harmless from and against any claim, demand, action, subpoena, request or attestation brought by a third party (collectively, a “Claim”), and all out-of-pocket damages, awards, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees and other legal expenses, in each case, that are paid or payable to third parties pursuant to such claim (collectively, “Costs”), to the extent such claim arises from  (a) any bodily injury to persons or damage to tangible property caused by the negligence or the willful misconduct of any of its respective directors, officers, employees, and agents solely in respect of the Ordered Materials and equipment related thereto (b) Customer’s manufacture, sale, distribution of the Products.

10. Limitation of Liability.  In no event shall BFS or any of its affiliates or any of their respective directors, officers, employees, or agent be liable to the customer or any of its affiliates, and the customer hereby releases, indemnifies, and holds harmless BFS, for special, indirect, incidental, or consequential damages of any kind arising in any way out of this agreement or the use of the Ordered Materials or of any license hereunder, however caused and on any theory of liability, including without limitation economic damages or injury to property or lost profits, regardless of whether BFS shall be advised, shall have other reason to know, or in fact shall know of the possibility of the foregoing.  The Customer agrees and hereby acknowledges that the only liability BFS shall have to Customer under this Agreement shall be a refund for defective Ordered Materials, in no event shall BFS’ liability to the Customer under this Agreement exceed the payment received by BFS for the Ordered Materials provided hereunder.

11. DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BFS PROVIDES THE ORDERED MATERIALS TO YOU ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE.

12. Ownership and Intellectual Property.  BFS owns, and shall own and retain, any and all intellectual property related to the Ordered Materials.  Customer agrees that it obtains no intellectual property rights under this Agreement other than the limited license explicitly set forth in Section 2.  

13. Notices.  Notices to Customer shall be sent by electronic mail, and will be sent to the electronic mail address as provided to BFS.  Notices to BFS shall be sent by electronic mail to support@berkeleyyeast.com, such notice shall be effective upon confirmation of receipt of the electronic mail by BFS.

14. Duration and Termination.  This Agreement will be effective and binding upon the Customer and BFS until either Party provides written notice of termination to the other party.  Termination of this Agreement will not relieve either party of obligations relating to Ordered Materials purchased prior to such termination.  Even after such time as this Agreement is terminated, the provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, or any other provision that by the nature of its content are intended to survive termination, will continue to bind the Customer and BFS with respect to the Ordered Materials and this transaction.

15. Dispute Resolution; Binding Arbitration.  In the event of a dispute arising from this Agreement or the relationship under this Agreement, the Parties shall attempt in good faith to resolve the dispute by negotiation.  If the dispute has not been settled by negotiation, the dispute will be settled by arbitration.  The arbitration will be conducted in accordance with the Rules of Arbitration of the United States of America (“Rules”) by one or more arbitrators appointed in accordance with the Rules.  The result of such arbitration shall be binding.  The arbitration shall take place in Alameda County, California, unless the Parties agree otherwise.

16. Changes to this Agreement.  This Agreement is subject to occasional revision by BFS. We will notify you of any changes to this Agreement by sending an email to the email address you have provided to us.  Changes to this Agreement will be effective as to existing purchases of Ordered Materials thirty calendar days following notification of such change, but for new purchases of Ordered Materials after the date of such notification, these changes will be effective immediately.  If you do not object to such changes before the expiration of the 30 day period, you will be deemed to have acknowledged such changes and agreed to be bound by the updated version of this Agreement.

17. Miscellaneous.  Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of BFS.  This Agreement is freely assignable and transferable by BFS.  This Agreement shall be construed in accordance with the laws of the state of California, irrespective of any choice of law principles that would propose or require the application of the law of another jurisdiction.  If any provision of this Agreement shall become or be declared illegal, invalid, or otherwise unenforceable under the laws of any jurisdiction for any reason whatsoever, it shall be divisible from this Agreement and will be deleted, or if permitted by the jurisdiction, such provision shall be modified to the least extent necessary to make the provision valid and binding consistent with the spirit and intent of the provision as originally drafted.  If any such deletion substantially affects or alters the commercial basis of this Agreement, the Parties shall negotiate in good faith to amend and modify this Agreement as may be necessary or desirable in the circumstances, and the legality, validity or enforceability of any other provision of this Agreement will in no way be affected or impaired thereby.  This Agreement constitutes the entire agreement between the Parties and supersedes and terminates any prior Terms of Service.  Customer acknowledges and agrees that damages may not be an adequate remedy for breach by Customer of the terms, conditions, or provisions of this Agreement and that BFS is entitled to the remedies of injunction, specific performance, and/or other equitable relief for breach of any term, condition, or provision of this Agreement by Customer.  No failure or delay by BFS in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power, or privilege under this Agreement.  The Customer should print a copy of this Agreement for their records and understands they will not receive a copy from BFS.  Once the Customer agrees to this Agreement as indicated at the bottom of this Agreement, this Agreement will constitute a legal binding instrument.

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