BRIGHT BREWERS YEAST INC. TERMS AND CONDITIONS OF USE
These terms and conditions of use (the “Ts&Cs”) shall govern in respect of Bright Brewers Yeast Inc. and any distributors (the “Seller”) that manufacture, trial, sell and deliver yeast products (the “Products”) for limited use in the fermentation of beverages by a purchaser of the Products (the “Buyer”). Buyer and Seller agree as follows:
- Use of Product. Subject to the Ts&Cs and Buyer’s adherence to the Fermentation Protocol (hereinafter defined), Seller grants to Buyer directly involved in the fermentation of beverages, a non-transferable, non-exclusive limited right to use the Products solely for the fermentation of beverages at Buyer’s premises. No other right to the Products is granted to Buyer under the Ts&Cs.
- Fermentation Protocol. Buyer covenants and agrees that Buyer will not ferment more than 200 hectolitres per five hundred gram (500g) packet of the Products (the “Fermentation Protocol”).
- Restrictions on Use. Except for the fermentation of beverages in accordance with the Fermentation Protocol, Buyer will not: i) manipulate, propagate or make modifications of the Products; ii) use the Products in any manner or for any purpose; iii) analyze, reverse engineer, or study the Products in any manner or for any purpose; iv) provide or make available to any third party for any purpose whatsoever, the Products without the prior written consent of Seller whose consent may be withheld at its sole discretion; or v) contravene the Fermentation Protocol in any manner.
- Transfer of Products. Buyer will handle the Product in accordance with all applicable legislation. Buyer agrees that the use by it of the Products shall be at Buyer’s sole expense and risk.
- Ownership. Seller retains all right, title and interest in and to the Products and also retains all right, title and interest in and to Products contained wholly or partly within the repitched, harvested or reused Product during the Fermentation Protocol. Buyer acknowledges that the Products contain certain proprietary and patented yeast technologies (“Patents”) owned by the patent holder (“Patent Holder”) and exclusively licenced to Seller. The intellectual property associated with the Products, including but not limited to the Patents and Seller’s trademarks, is and shall remain the property of Seller and/or the Patent Holder and all rights, title and interest in and to such intellectual property shall remain the sole and exclusive property of Seller and/or the Patent Holder and no right of ownership in such intellectual property shall vest in Buyer.
- Limited Warranty. Seller warrants Products to be free from defects in material and workmanship up until the “best before” date on the packaging of the Products, subject to proper handling and storage of the Products by Buyer during that time. Individual results from the use of Products may vary due to storage, handling, management, equipment, environmental, materials and processing differences. Seller does not warrant or guarantee individual results or performance of Products in any way. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR COMMON LAW, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS TO MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Where Products are reasonably determined by Seller to be non-conforming in material or workmanship, Seller shall provide replacement Products at its own cost, or refund or credit to Buyer some or all of the purchase price for the non-conforming Products as set out in the Sales Order, at Seller’s sole discretion. Seller’s obligation to Buyer with respect to any non-conforming Products is limited solely and exclusively to replacement of the non-conforming Products or refund or credit of some or all of the price of the non-conforming Products and such replacement, refund or credit shall be Buyer’s sole and exclusive remedy in respect of any such non-conformity or breach of warranty by the Seller.
- Limitation of Liability. IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY GENERAL, PECUNIARY, NON-PECUNIARY, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, loss of profit or revenues, loss of goodwill, cost of recalls, damage for loss of use of the Products, damage to property, or claims of third parties, including claims for economic loss, personal injury or death arising from use of the Products or failure of Seller to adequately warn against, or instruct on, the dangers of the Products or the safe and proper use of the Products. SELLER’S TOTAL, AGGREGATE AND MAXIMUM LIABILITY TO BUYER OR ANY OTHER PARTY IN ANY WAY ARISING FROM, RELATED TO OR CONNECTED WITH THE Ts&Cs OR THE PRODUCTS FROM ANY CAUSE WHATSOEVER, WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING INTEREST AND COSTS, IS LIMITED TO THE PRICE PAID TO SELLER BY BUYER FOR THE PRODUCT AS STATED IN THE SALES ORDER.
- Indemnification. Buyer shall defend, indemnify, and hold Seller and its officers, directors, agents, representatives, employees, and affiliates harmless from any and all sums, claims, costs, duties, suits, actions, losses, damages, legal fees (including reasonable attorney’s fees), obligations, liabilities, and liens arising out of or relating to: (i) Buyer’s purchase, use, possession, ownership, operation, sale, transfer, export, transportation or disposal of the Products; (ii) Buyer’s violation or alleged violation of any foreign, federal, provincial, state, or municipal laws or regulation, including without limitation, the laws and regulations governing product health and safety; (iii) Buyer’s breach of the Ts&Cs; and (iv) Seller’s enforcement of the Ts&Cs.
- Destruction of the Products. Buyer shall promptly destroy the Products (with written confirmation to the Seller of such destruction if requested) before or immediately upon reaching the Fermentation Protocol limits.
- No License Granted. The Ts&Cs shall in no way be construed as the granting of a license or sublicense to Buyer.
- General. The Ts&Cs will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflicts of law doctrines. Buyer agrees to the exclusive jurisdiction of the courts of the province of British Columbia, Canada with respect to any Disputes relating to the Ts&Cs or the Products. Buyer waives: (i) all rights to a trial by jury with respect to any claims and issues relating to or arising out of the Ts&Cs or the Products; (ii) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason; and (iii) any statutory or other right pursuant to the laws of the jurisdiction in which Buyer is resident to have a court case or arbitral hearing relating to the Ts&Cs adjudicated or resolved in that jurisdiction. Seller’s rights and remedies under the Ts&Cs are cumulative and in addition to any other rights or remedies provided by law or equity. In no event shall the standard terms and conditions of Buyer accompanying or appended to Buyer’s purchase order or any other document supersede, alter or amend any provision of this Agreement or be binding upon Seller in any way. No course of dealing established between Seller and Buyer, or any variation thereof, shall vary this Agreement or be binding upon the Seller unless expressly agreed to by Seller in writing. The Ts&Cs are binding upon and inures to the benefit of the Seller and Buyer and their respective successors, permitted assigns and transferees. Seller’s failure to insist on strict performance of the Ts&Cs or to enforce a default upon the occurrence of any single, repeated, or continuing violation of any particular term or condition hereof, shall not be considered a waiver of Seller’s right to insist on strict performance of the Ts&Cs or to enforce a default with respect to the violation of any other term or condition or, at any later time or upon any subsequent occurrence, with respect to that particular term or condition. If any of the provisions of the Ts&Cs are held to be invalid, illegal, or unenforceable, then such provision shall be ineffective only to the extent of such invalidity and the unaffected provisions of the Ts&Cs shall be unimpaired, and remain in full force and effect. Obligations under the Ts&Cs which by their nature are intended to survive beyond the termination, cancellation or expiration of the Ts&Cs, shall survive.