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TERMS OF SERVICE
By checking “I agree to the Terms & Conditions” on the order page of Berkeley Brewing Science, Inc.’s website you confirm that you have read these Term of Service (the “Agreement”) and the terms and conditions herein, that you understand the terms and conditions herein, and that you agree to be bound by the terms and conditions herein. Read this Agreement carefully, as the terms and conditions herein affect the rights, including your rights of recovery and liability, with respect to the relationship between you, the Customer, and BBS. You may exit and choose not to agree with this Agreement at any time prior to acceptance by exiting, closing, or navigating away from the order page without placing an order.
This Agreement describes and governs the rights and obligations of you (the “Customer”) and Berkeley Brewing Science, Inc., which has a registered office at 2451 Peralta St., Oakland, CA 94607 (“BBS”). At any point in this Agreement, either the Customer or BBS may also be referred to as “Party” or collectively may be referred to as the “Parties.”
The Customer must read this Agreement, agree to the terms and conditions of this Agreement, and confirm acceptance by checking “I agree to the Terms & Conditions” on the order page to enter into a contract with BBS for the Services (as defined below) requested.
THE CUSTOMER AND BBS AGREE AS FOLLOWS:
As used in this Agreement, the following terms shall have the following meanings, other terms may be defined throughout this Agreement.
1.1 “Cross-bred Progeny” shall mean any modified descendant of the Original Materials derived from breeding or crossing the Original Materials with another organism or material.
1.2 “Derivative” shall refer to any modification, genetic or otherwise, of the Original Materials, progeny, or cross-bred progeny thereof, or substances which constitute a subunit or product expressed by the Original Materials or progeny thereof, such as, but not limited to, purified or fractionated subsets of the Saccharomyces cerevisiae strain, including expressed proteins or extracted or amplified nucleic acid.
1.3 “Materials” shall mean collectively, Cross-bred Progeny, Derivatives, Modifications, Progeny, Ordered Materials, and Original Materials.
1.4 “Modification” shall mean new substances created that contain, incorporate, are based on or result from the Original Materials, Progeny, Cross-bred Progeny, or Derivatives or any combination of same, which are not themselves Progeny, Cross-bred Progeny, or Derivatives.
1.5 “Original Materials” shall mean any strain of Saccharomyces cerevisiae, used, researched, produced, or generated by BBS, regardless of origin.
1.6 “Progeny” shall mean any unmodified descendant(s) of the Original Materials, such as a subculture or replicate.
The Customer, desires to engage BBS to provide Services (as are further explained and defined below) with respect to BBS’s knowledge and expertise, and BBS desires to render such Services to the Customer.
BBS has specific expertise and knowledge in the field of generation of Saccharomyces cerevisiae strains. By entering into this Agreement Customer wishes to have BBS generate and deliver a strain Saccharomyces cerevisiae with desired properties (the “Services”). This desired strain (as ordered and confirmed as outlined in Sections 2.2 and 2.3 below), shall be known as the “Ordered Materials.” BBS supplies Ordered Materials in units of “barrel-pitch” or plates, but other quantities may be possible upon request, BBS however is not required to honor any such requests.
Pursuant to this Agreement, the Customer shall only use the Ordered Materials for the permitted purposes of: brewing and selling alcoholic beer beverages of an aggregate quantity of less than 1000 barrels (“Permitted Purpose”).
The Customer understands and agrees that, during the generation and provision of the Ordered Materials, BBS may generate of one or more Saccharomyces cerevisiae strains, which may include Progeny, Cross-bred Progeny, Derivatives, or Modifications, and/or cultures or fermented products produced from Original Materials, of which, the Ordered Materials may be one of the strains produced. The Customer further understands and agrees that once the Ordered Materials are generated, BBS may further generate of one or more Saccharomyces cerevisiae strains from the Ordered Materials and that any Materials, products, generated or produced shall be the sole and exclusive property of BBS.
2.2 Order. Upon acceptance of this Agreement, BBS will contact the Customer via electronic mail at an address specified by the Customer to confirm the Ordered Materials and desired properties.
Upon confirmation of the Ordered Materials and desired properties, BBS will provide to the Customer a written invoice of the cost and estimated delivery date for the Ordered Materials. Unless otherwise noted on the invoice, all estimated delivery dates or times are contingent upon prompt receipt of payment by BBS and will be established by the payment receipt date. Any delay in receipt of payment will delay such delivery date or time by at least an equivalent amount of time. All Invoices shall be due within thirty (30) days of receipt, unless otherwise stated on the invoice.
2.4 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 BBS immediately, who in their sole discretion may retest or replace the Ordered Materials, or issue refund of the order price for the Ordered Materials. If Customer does not contact BBS or report a defect of the Ordered Materials within five (5) business days, Customer agrees the Ordered Materials are acceptable and accepted.
3. Limitations and Restrictions.
3.1 The Customer shall not propagate, modify, distribute, transfer, and/or sell the Ordered Materials to any third party without prior written consent from BBS.
3.2 The 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.
3.3 The Customer hereby agrees to keep the Ordered Materials secure and not permit any third party to access, inspect, or test the Ordered Materials without prior consent from BBS.
3.4 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.
3.5 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.
4. Status, Representations, and Warranties.
4.1 “Experimental” and “As-Is” Status. All Ordered Materials provided pursuant to this Agreement are understood to be experimental in nature and may have hazardous properties. Customer agrees to accept the Ordered Materials in “AS IS” condition.
4.2 Disclaimer of Warranties. BBS makes no representations, extends no warranties of any kind, express, implied or otherwise, with respect to the Ordered Materials regarding its accuracy, performance, or non-infringement of third party rights, or its fitness for a particular purpose, ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AND HEREBY DISCLAIMS THE SAME. SPECIFICALLY, AND NOT TO LIMIT THE FOREGOING, BBS MAKES NO WARRANTY OR REPRESENTATION REGARDING THE, SAFETY OF ANY Ordered MATERIALS. CUSTOMER ACKNOWLEDGES AND AGREES THAT NOT ALL THE CHARACTERISTICS OF THE ORDERED MATERIALS ARE KNOWN AND IT IS POSSIBLE THE MATERIALS ARE VOLATILE OR DANGEROUS.
5.1 Assumption of Liability. Upon delivery of Ordered Materials to the Customer, and in acknowledgement and recognition of Sections 4.1 and 4.2 above, 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.
5.2 Limitation of Liability. IN NO EVENT SHALL BBS 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 BBS, 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 BBS SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING.
5.3 Sole Recovery. The Customer agrees and hereby acknowledges that the only liability BBS shall have to Customer under this Agreement shall be a refund for defective Ordered Materials, in no event shall BBS’ liability to the Customer under this Agreement exceed the payment received by BBS for the Services provided hereunder.
6. Ownership and Intellectual Property.
BBS owns, and shall own, any and all intellectual property related to the Materials, including the Ordered Materials, and results from use of the Materials, including Ordered Materials, and shall be solely entitled to file patent applications, register copyrights, or pursue any other intellectual property rights with respect to these results, or in its sole discretion to allow any third party to do so.
The Customer shall treat any and all knowledge, information, materials, data, specifications, formula, prescriptions, processes, production methods, information, advice, and all further data and other information, related to BBS, the Materials or use of the Materials, or any part thereof, as to be information of a confidential nature and undertakes to hold the such information strictly confidential and shall not disclose it, or any part thereof, to any third party, person, firm, or company. The Customer agrees to take all reasonable measures to prevent the prohibited or unauthorized disclosure or use of such confidential information with the same degree of care as its own confidential information.
The confidentiality obligation will not be applicable to that part of the confidential information of which Customer is able to demonstrate that: (a) at the time of disclosure is in the public domain; (b) after disclosure is published or otherwise becomes part of the public domain through no fault, omission, or action of Customer; (c) at the time of disclosure was already in the possession of the Customer and was not acquired, directly or indirectly, from BBS; (d) it is received by Customer after the time of disclosure by BBS from a bona fide third party that did not acquire such confidential information from BBS and which third party had no obligation of confidentiality with respect to the information; (e) it is independently and bona fide developed by Customer; or (f) disclosure of the confidential information is by order of a valid court or governmental authority (provided that any disclosure will only be to the extent as required by the order of the court or governmental authority) having the bona fide authority to require such disclosure, provided that in such cases, Customer shall inform BBS promptly after receiving such an order of a court or governmental authority so as to allow BBS an opportunity to seek a protective order or restrict such disclosure. Customer shall take all steps reasonably available to minimize the disclosure required and where possible to ensure the continued confidentiality of the confidential information and will cooperate with BBS in any actions to effectuate this goal.
8.1 Notices to Customer shall be sent by electronic mail, courier service, or by facsimile and will be sent to the electronic or physical address as provided to BBS in the order and confirmation correspondence as outlined in Sections 2.2 and 2.3 in this Agreement.
8.2 Notices to BBS shall be sent by courier service to the address below, or in the event electronic mail or facsimile is used, such notice shall be effective upon confirmation of receipt of the electronic mail by BBS.
Berkeley Brewing Company
2451 Peralta St
Oakland, CA 94607
Attention: Charles Denby
9. Duration and Termination.
This Agreement will be effective and binding upon the Customer and BBS until five (5) business days after delivery of the Ordered Materials, unless a defect is communicated to BBS. In the event a defect is communicated, this Agreement will continue in effect until such Ordered Materials are replaced or refunded, or other resolution is reached pursuant to Section 10 below. Even after such time as this Agreement expire or terminate, the provisions of clauses 3, 4, 5, 6, 7, 10, 11 or any other provision that by the nature of its content are intended to survive termination, will continue to bind the Customer and BBS with respect to the Ordered Materials and this transaction.
10. 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.
11.1 Neither the Customer or BBS may assign, transfer, or mortgage any of its rights or obligations under this Agreement without the prior written consent of the other Party.
11.2 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.
11.3 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.
11.4 This Agreement constitutes the entire agreement between the Parties and supersedes and terminates all previous agreements, arrangements and understandings between the Parties relating to the subject of this Agreement.
11.5 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 BBS 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.
11.6 No failure or delay by BBS 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.
11.7 The Customer should print a copy of this Agreement for their records and understands they will not receive a copy from BBS. Once the Customer agrees to this Agreement as indicated at the bottom of this Agreement, this Agreement will constitute a legal binding instrument.
This Agreement and this online ordering portal are not applicable for orders exceeding three thousand five hundred dollars ($3,500.00) or one hundred (100) pitch-barrels. For orders exceeding either of these limits, please contact our purchasing department directly. Any orders attempted through this portal exceeding these limitations, regardless of any apparent submission, are null and void.
You may exit and choose to decline / not to agree with this Agreement by exiting, closing, or navigating away from the order page without placing an order. You may further exit and choose not to agree with this Agreement by clicking “Decline / I do NOT Accept” below.
By checking “I agree to the Terms & Conditions” on the order page you confirm that you have read the terms and conditions above, that you understand the terms and conditions above, that you agree that upon your agreement as represented by checking “I agree to the Terms & Conditions” that you agree to be bound by the terms and conditions above.