Master Subscription Agreement

IF YOU SIGN UP FOR A SUBSCRIPTION, EITHER BY SIGNING AN ORDER FORM OR THROUGH OUR WEBSITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS:

 

This Master Subscription Agreement (this “Agreement“) is entered into by and between Precision Fermentation, Inc. (“PFI“), a Delaware corporation located at 2810 Meridian Parkway, Suite 128, Durham, NC 27713 and the legal entity, including its Affiliates (collectively “Subscriber“), identified in and executing the Order Form that incorporates this Agreement by reference.  (Each of PFI and Subscriber, a “Party“, and collectively, the “Parties“). 

Capitalized terms not otherwise defined have the meaning set forth in Section 12 below.

1. Scope This Agreement governs the access to and use of the Services which Subscriber may order from PFI during the Subscription Term. PFI agrees to provide the Subscriber with the items set forth in the applicable Order Form(s). The description of the Services and items ordered and purchased by Subscriber, and the additional terms and conditions that apply to each such Services, are set forth in Order Form(s) that incorporate this Agreement by reference. Subscriber’s purchases of access to and use of the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by PFI regarding future functionality or features.  In the event of an express conflict between the terms of this Agreement and the terms of the Order Form, the terms of the Agreement will prevail, except to the extent of any special terms set forth in such Order Form.

2. BrewIQ^®System Access and Use.

2.1 The Dashboard.  Other than in connection with the Alpha/Beta Services (as defined below), PFI shall make the Dashboard available to Subscriber (and its Authorized Users) during each Subscription Term, subject to Subscriber’s timely payment of all applicable Fees, and pursuant to this Agreement, the applicable Order Form and the terms of the Dashboard Terms of Use.  Notwithstanding the foregoing, subject to Subscriber’s compliance with all of the terms and conditions of this Agreement, and other than in connection with the Alpha/Beta Services, PFI hereby grants Subscriber (and its Authorized Users) a limited, revocable, non-exclusive, non-transferable, non-assignable right and license during the Subscription Term to access and use the Dashboard and the Documentation, solely in connection with Subscriber’s use of the BrewIQ^® System solution under this Agreement, to access Fermentation Data. PFI may provide and host the Dashboard on its own infrastructure or using a third-party cloud computing services provider.  PFI may, in its sole discretion, Update the Dashboard at no additional cost to Subscriber.  PFI may also modify, enhance or expand the Dashboard by providing additional features or functionality, which may, but are not required to be, added by Subscriber to this Agreement at additional cost.  Such additional cost features and functionality may be added only by mutual written agreement of the Parties.

2.2.          Equipment.

2.2.1.  Provision of Equipment.  After execution of an Order Form, PFI agrees to send to Subscriber’s Premises the Equipment, in the quantities indicated on the Order Form, as well as any additional supplies purchased by Subscriber.  PFI will also provide to Subscriber, Documentation regarding use, installation, maintenance and/or troubleshooting of the Equipment.

2.2.2.  Limitations on Use of the Equipment.  PFI agrees to provide Subscriber the Equipment as set forth in the Order Form.  PFI grants to Subscriber the right to install and utilize such Equipment, solely as located on the Premises, and solely for the Permitted Purposes during the Subscription Term. Subscriber will not use the Equipment for any other purpose nor in any other manner than exclusively in connection with Subscriber’s business.

2.2.3.  License to Firmware.  PFI hereby grants to Subscriber a limited, non-exclusive, non-transferable, non-sublicensable license to use the proprietary operating systems and other software embedded in the Fermentation Hub (the “Firmware“), during the Subscription Term, solely as embedded in the Fermentation Hub, for the purposes of operating the Fermentation Hub in accordance with the terms set forth in this Agreement and the Documentation.  Subscriber agrees that in some cases, Updates to the Firmware will be pushed remotely to the Fermentation Hub(s) and Subscriber may not need to take any action.

2.3.          Restrictions.  Subscriber will not, directly or indirectly or permit any Authorized Users to, do any of the following: (a) make the BrewIQ^® System available to, or use the BrewIQ^® System for the benefit of, anyone other than Subscriber; (b) sell, resell, license, sublicense, distribute, rent or lease the BrewIQ^® System or any component thereof, or include the BrewIQ^® System in a service bureau or outsourcing offering; (c) use the Dashboard to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Dashboard to store or transmit code, files, scripts, agents or programs intended to do harm (including, for example, viruses, worms, time bombs and Trojan horses); (e) interfere with or disrupt the integrity or performance of the Dashboard or any third-party data contained therein; (f) attempt to gain unauthorized access to any component, algorithm, source code, or to reverse engineer, disassemble or decompile any portion of the BrewIQ^® System or its underlying technology; (g) open, tamper with, service or make any alterations to Equipment, or access or use (or attempt to) the Firmware on a standalone basis; (h) remove or relocate any Equipment from the Premises, in each case unless authorized or directed by PFI in writing; (i) permit direct or indirect access to or use of any part of the BrewIQ^® System in a way that circumvents a contractual usage limit, (j) copy any part, feature, function or user interface of the Dashboard or the Documentation; (k) remove, delete, alter or obscure (or attempt to) any proprietary labels, notices, trademarks and markings in any component or part of the BrewIQ^® System; or (l) access or use any component or information related to the BrewIQ^® System in order to build a competitive product or service, or for benchmarking or competitive analysis for itself or others.  For sake of clarity, without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of the Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber.

2.4.          Fermentation Data.  The BrewIQ^® System will process and provide Fermentation Data as part of the Services.  If Subscriber chooses to save such Fermentation Data, it will be saved in Subscriber’s PFI account, however upon any termination, PFI will make all Fermentation Data available to Subscriber for electronic retrieval up to the last day of the Service, but afterwards all access shall cease; provided, however, in the event Subscriber uses the BrewIQ^® System in connection with the Alpha/Beta Services, all Fermentation Data will be saved in Subscriber’s PFI account, however, except when otherwise determined by PFI no such data shall be, or shall be made, accessible to Subscriber.  Subject to the payment of the Fees in accordance with the applicable Order Form, other than in connection with the Alpha/Beta Services, PFI hereby grants to Subscriber (and its Authorized Users), and Subscriber hereby accepts, a non-exclusive, worldwide, non-transferable right and license, without the right to sublicense, to receive, access, and use the Fermentation Data for Subscriber’s internal business purposes only.  Subscriber agrees that any alteration, tampering, or the receipt of Fermentation Data at a location other than the Premises, is prohibited and constitutes a material breach of the terms of this Agreement.  Subscriber hereby agrees that it shall not publish or otherwise share any Fermentation Data, performance characterizations or other data generated by the BrewIQ^® System. Subscriber understands and agrees that Fermentation Data is for Subscriber’s informational purposes only and it is not intended for accreditation or for obtaining any kind of certifications, including but not limited to certifications regarding alcohol content in fermentation processes.

2.5.          Personal Property.  Subscriber acknowledges and agrees that the Equipment is deemed to be personal property and shall not be deemed a “fixture” under applicable law, even if the Equipment or any part thereof, may be or becomes affixed or attached to real property or any improvements.  Upon PFI’s written request, Subscriber shall obtain and provide to PFI, from each real property landlord, mortgagee or lienholder for the Premises, a waiver of any interest that it may have or proport to have in the Equipment arising from its interest in the real property.

2.6.          Returns and Access to Premises.  Upon the expiration or termination of this Agreement, the Subscription Term, or the Alpha/Beta Services, Subscriber must, at its expense, promptly deinstall Equipment.  Subscriber shall cause all Equipment returned under this Agreement to (a) remain free and clear of all liens and rights of third parties, and (b) be in the same condition as when it was delivered to Subscriber, ordinary wear and tear expected, and Subscriber shall ship all Equipment to PFI.  In the event that Subscriber fails to ship any Equipment back to PFI, Subscriber authorizes PFI (through any of its officers, employees or agents) to access the Premises to remove the Equipment from the Premises.  However, PFI’s failure to remove any Equipment will not be deemed abandonment of such Equipment. Subscriber acknowledges and agrees that in the event Subscriber terminates services prior to the expiration of the Subscription Term or if Subscriber is in breach of this Agreement for failure to pay any Fees when due, and such breach remains uncured under Section 5.2, Subscriber shall be obligated to immediately and promptly return the Equipment to PFI at Subscriber’s cost. In addition to and not in lieu of any other remedies that PFI may be entitled to, PFI may, at its option, charge Subscriber the full replacement value of the unreturned Equipment, or continue to charge Fees until all Equipment is returned or recovered.  Subscriber shall reimburse PFI for all collection costs and recovery expenses, including attorneys’ fees and enforcement costs.

2.7.          Title and Security Interest.  Title to and ownership of the BrewIQ^® System will always remain in PFI. The BrewIQ^® System, its Documentation and Fermentation Data are Intellectual Property of PFI. The Subscriber shall have no right, title or interest in the BrewIQ^® System except as expressly provided in this Agreement. PFI reserves all rights not expressly granted herein. There are no implied rights.  During the Subscription Term, the Subscriber shall keep the BrewIQ^® System free from all liens and encumbrances and shall have no right to dispose or surrender possession, use or operation of the BrewIQ^® System to any third party without the prior written consent of PFI. As security for Subscriber’s obligations hereunder, Subscriber hereby grants to PFI a security interest in Subscriber’s interest in the BrewIQ^® System, and all additions, parts, repairs, accessories, accessions, and attachments thereto, substitutions and replacements therefor, and proceeds (including insurance proceeds) thereof.  Subscriber authorizes PFI to take any actions necessary to perfect PFI’s security interest in the BrewIQ^® System, including, without limitation, (i) the filing of any financing statement or other documents, with or without Subscriber’s signature, and (ii) appointing PFI as its attorney-in-fact to execute any documents that require Subscriber’s signature. Subscriber shall reimburse PFI for all actual costs of PFI for the preparation and filing of such financing statements and documents (a copy of which PFI will provide to Subscriber upon request).

3. Installation and Maintenance.

3.1.          Installation Services.  If Subscriber has chosen to receive Installation Services, Subscriber shall prepare and render the Premises safe for the installation of the Equipment.  Subscriber shall grant access to the Premises to allow PFI or its designated representative to install all Equipment.  Otherwise, Subscriber is solely responsible for the proper installation and configuration of all Equipment at the Premises in accordance with all Documentation and other instructions provided by PFI.

3.2.          Inspection.  Under certain circumstances, PFI may need to inspect an installation of the BrewIQ^® system.  Subscriber shall permit PFI (through any of its officers, employees or agents) on reasonable notice to inspect the Equipment during regular business hours, and in compliance with Subscriber’s reasonable security procedures.

3.3.          Maintenance.  Subscriber, at its own expense, shall maintain, service, repair and keep all Equipment (a) in the same condition as when it was delivered to the Premises, ordinary wear and tear excepted; (b) in compliance with the Documentation and any other maintenance and care instructions provided by PFI; and (c) in compliance with all applicable laws.  Subscriber acknowledges and agrees that the complete and accurate delivery of the Fermentation Data requires that Subscriber maintains the Equipment in accordance with the terms of this Agreement and any and all Documentation and other maintenance and care instructions provided by PFI.  PFI will provide standard customer support services by e-mail (support@precisionfermentation.com) during the hours of 9:00 AM and 5:00 PM ET, Monday to Friday, excluding bank holidays.  PFI may amend these hours from time to time in its sole discretion by providing advance written notice to Subscriber.

3.4.          Damaged Equipment. In the event that Equipment is damaged or fails to function in accordance with its specifications, Subscriber shall promptly contact PFI regarding such issue, and PFI will determine, in its sole discretion, a course of action for addressing such issue. If PFI determines that Subscriber must replace any piece of Equipment, PFI will provide or identify such replacement parts and provide instructions to Subscriber regarding the replacement of such parts.  If PFI determines that the Equipment cannot be repaired, PFI will replace the damaged Equipment, in which case Subscriber must promptly return the damaged or defective Equipment to PFI in accordance with PFI’s instructions. The repair or replacement of a damaged or defective Equipment as described in this Section 3.4 shall be done free of charge so long as such damage or defect was not caused by the misuse or other improper operation or handling of the Equipment by Subscriber or its Authorized Users, in which case Subscriber will be responsible for the costs associated with such repair or replacement.  Whether a repair or replacement has been necessitated by the misuse or other improper operation or handling of the Equipment by Subscriber or its Authorized Users will be determined in PFI’s reasonable discretion.  PFI will have the right to presume misuse or other improper operation or handling by Subscriber in the event Subscriber requests repair or replacement more than twice in any twelve (12) month period, or more than three (3) times in any twenty-four (24) month period, and in such case, will also have no obligation to fulfill such repair or replacement.  If Subscriber is required to pay for replacement Equipment, Subscriber will be charged the full replacement cost of the Equipment.

3.5.          Required Upgrades.  Subscriber agrees to (and hereby consents for PFI to) install alterations, modifications, additions and upgrades to any Equipment that are required or supplied by PFI (“Required Upgrades“). Subscriber may not make or cause to be made any other upgrades to the Fermentation Hub and Tank Connectors unless approved in writing by PFI in each case.  To the extent Subscriber incorporates or installs any such Required Upgrades or other authorized upgrades to the Equipment, immediately upon any incorporation or installation, such Required Upgrade or other upgrade is deemed a part of the Equipment to the same extent as though originally incorporated or installed in Equipment.  Subscriber acknowledges and agrees that PFI has no obligation to service or otherwise maintain the Equipment beyond the provision of the Required Upgrades, which it shall provide at its sole discretion.

3.6.          Loss.  Risk of loss or damage to the Equipment while in-transit remains with PFI and shall pass to Subscriber upon delivery at Subscriber’s designated Premises.  In the event that Subscriber has not paid for any given Equipment, including in connection with the Alpha/Beta Services, Subscriber shall nevertheless bear all risk of loss, damage, destruction, theft and condemnation to or of any Equipment from any cause whatsoever (“Loss of the Devices“), and Subscriber shall be responsible for payment to PFI of the full replacement cost of the Equipment.

3.7.          Insurance Requirements.  Subscriber will maintain in full force and effect during the Subscription Term and for not less than six (6) months thereafter insurance coverages covering Loss of the Devices in at least those amounts necessary to cover the original cost of the Equipment for all Equipment that Subscriber receives under this Agreement and the applicable Order Form.

4. Fees; Payment Terms.

4.1.          Recurring Payments; Third Party Payment Processor.  In consideration for the Services, Subscriber agrees to pay all Fees and any other amounts stated in the Order Form, in U.S. Dollars; provided, however, the Alpha/Beta Services shall be provided free of charge.  Unless otherwise indicated, Fees are non-refundable.  Fees are invoiced on the Effective Date indicated in the Order Form, and afterwards, on each anniversary thereof during the Subscription Term.  Fees will be charged to the account provided by Subscriber.  Subscriber acknowledges that PFI uses a third-party payment processor to process the payment of the Fees, and such third-party payment processor may have additional terms that are applicable to Subscriber with respect to the processing of such payments.  Subscriber hereby authorizes PFI to use such third-party payment processor to charge the Fees, on a recurring annual basis, to Subscriber’s account.  If Subscriber is making payments via credit card or ACH, please note that if Subscriber’s payment date falls on a weekend or holiday, the payment may be executed on the next business day.  In the case of an ACH transaction being rejected for non-sufficient funds (“NSF“), PFI may in its sole discretion attempt to process the charge a second time within thirty (30) days of the first unsuccessful attempt, and you agree that PFI may include an additional five dollar (USD $5) charge for each attempt that is returned for NSF, which will be initiated as a separate transaction from the authorized recurring payment.  The origination of ACH transactions to the Subscriber’s account must comply with the provisions of U.S. law.  The Subscriber certifies that they are an authorized user of this credit card/bank account and will not dispute these scheduled transactions with PFI’s bank or credit card processor so long as the transactions correspond to the terms indicated in the applicable Order Form.

4.2.          Fee Increases.  Following the Initial Term (as defined below), PFI may increase Fees to be charged for each Renewal Term (as defined in Section 5.1) in its sole discretion.  If PFI plans to increase the Fees in the upcoming Renewal Term, PFI shall provide written notice to Subscriber prior to the end of the then-current term.

4.3.          Taxes.  All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments.  Subscriber is responsible for all sales, use and excise taxes (or for providing PFI with an appropriate tax exemption certificate), and any other similar taxes imposed by any federal, state or local taxing authority.  Subscriber shall not be responsible for taxes imposed on PFI’s income.

4.4.          Late Payment.  All amounts payable to PFI under this Agreement will be paid by Subscriber to PFI in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).  If Subscriber fails to make any payment when due, then, in addition to all other remedies that may be available, (a) PFI may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (b) if such failure continues for thirty (30) days following the original due date for any given payment, PFI may suspend performance under this Agreement until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Subscriber by reason of such suspension.

5. Term and Termination.

5.1.          Term.  The initial term of this Agreement commences upon the Effective Date and, unless terminated earlier, will continue in effect for the period of one (1) year or as otherwise set forth on the Order Form (the “Initial Term“).  This Agreement will automatically renew for successive one (1) year terms unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each, a “Renewal Term“).

5.2.          Termination for Cause.  Either Party may terminate this Agreement upon written notice to the other Party: (a) if the other Party materially breaches any provision of this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (b) if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

5.3.          Effect of Expiration or Termination.  Upon any expiration or termination of this Agreement: (a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate; and (b) Subscriber will immediately cease all use of all Equipment, the Dashboard, Documentation and PFI Confidential Information (as defined below in Section 6.1).  Subscriber will: (i) promptly return to PFI all Equipment in accordance with Section 2.6 of this Agreement; and (ii) promptly return or, at PFI’s written request, destroy all documents and tangible materials containing, reflecting, incorporating or based on PFI’s Confidential Information.

5.4.          Surviving Terms.  The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including Sections 2.3, 2.4, 2.7, 3.6, 3.7, 4.4, 5.3, 5.4, 6, 7.2, 8, 9, 10, 11 and 12 of this Agreement.

6. Confidentiality.

6.1.          Confidential Information and Protection.  Each Party agrees that Confidential Information is confidential and each Party shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care.  No Party shall disclose the Confidential Information to any party other than the Party’s Affiliates, and each of the Party’s and its Affiliates’ directors, officers, employees, counsel, accountants, consultants, independent contractors, subcontractors, and agents (collectively, “Representatives“) who have a need to know such information; provided, that Recipient informs each such Representative who has access to the Discloser’s Confidential Information of its confidential nature, the terms of this Section 6, and that such terms apply to them, and Recipient shall use commercially reasonable efforts to ensure that each such Representative complies with the terms of this Section 6.  Recipient remains responsible and liable for any of its Representatives’ non-compliance with the obligations of confidentiality under this Agreement.  Without limiting the foregoing, all Documentation, Fermentation Data and non-public information related to the BrewIQ^® System are the Confidential Information of PFI.  Subscriber Data is the Confidential Information of Subscriber.

6.2.          Exclusions.  Confidential Information does not include information that the Recipient can demonstrate by written or other documentary records (a) was rightfully known to the Recipient without restriction on use or disclosure prior to such information’s being disclosed or made available to the Recipient in connection with this Agreement; (b) was or becomes generally known by the public other than by the Recipient’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Recipient on a non-confidential basis from a third-party that, to the Recipient’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Recipient without reference to or use of any Confidential Information of the Discloser.

6.3.          Compelled Disclosure.  If any Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party will, to the extent permitted by applicable law, provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 6 with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Party waives compliance with the non-disclosure provisions of this Section 6 with respect to the information required to be disclosed, the first Party will furnish only that portion of such information that it is legally required to be furnished.

7. Representations and Warranties.

7.1.          Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation/organization; (b) it has the full right, power and authority to enter into and perform its obligations under this Agreement; (c) the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

7.2.          Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES OTHERWISE SET FORTH IN THIS AGREEMENT, ALL EQUIPMENT, SUPPLIES, THE DASHBOARD, THE FIRMWARE, DOCUMENTATION, FERMENTATION DATA, AND INSTALLATION SERVICES ARE PROVIDED “AS IS”, AND PFI AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLDUING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, NEITHER PFI NOR ITS AFFILIATES MAKE ANY WARRANTY THAT THE PRODUCTS, SERVICES, DOCUMENTATION OR FERMENTATION DATA, OR ANY RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

8. Indemnification.

8.1.            Subscriber Indemnification.  Subscriber will indemnify, defend and hold harmless PFI and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “PFI Indemnitee“) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, awards, penalties fines, costs and expenses, including reasonable attorneys’ fees (collectively, “Losses“) incurred by such PFI Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action“) brought by a third-party to the extent that such Losses arise out of or relate to any (a) Subscriber Data, including any processing of Subscriber Data by or on behalf of PFI in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Subscriber, including PFI’s compliance with any specifications or directions provided by or on behalf of Subscriber to the extent prepared without any contribution by PFI; (c) allegation of facts that, if true, would constitute Subscriber’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any Subscriber personnel, or any third-party acting on behalf of Subscriber or Subscriber personnel, in connection with this Agreement.

8.2.          PFI Indemnification.  PFI will indemnify, defend and hold harmless Subscriber (“Subscriber Indemnitee“) from and against any and all Losses incurred by such Subscriber Indemnitee arising out of any Action brought by a third party (other than an affiliate of a Subscriber Indemnitee) to the extent that such Losses arise from any allegation in such Action that Subscriber’s use of the Equipment or Documentation in compliance with this Agreement infringes a U.S. intellectual property right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any (a) access to or use of the Equipment, Dashboard or Documentation in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by PFI; (b)  modification of Equipment, or the Dashboard or Documentation other than: (i) by or on behalf of PFI; or (ii) with PFI’s written approval in accordance with PFI’s written specification; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Subscriber by or on behalf of PFI; or (d) claim arising during Subscriber’s receipt of the Alpha/Beta Services.

8.3.          Indemnification Procedure.  Each Party will promptly notify the other Party in writing in accordance with Section 10.4 (Notices) of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 8.  The Party seeking indemnification (the “Indemnitee“) will cooperate with the other Party (the “Indemnitor“) at the Indemnitor’s sole cost and expense.  The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

8.4.          Mitigation.  If any of the Equipment, Dashboard or Documentation are, or in PFI’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Subscriber’s or Subscriber personnel’s use of the Equipment, Dashboard or Documentation is enjoined or threatened to be enjoined, PFI may, at its option and sole cost and expense (a) obtain the right for Subscriber to continue to use the Equipment, Dashboard and/or Documentation as contemplated by this Agreement; (b) modify or replace the Equipment, Dashboard and/or Documentation, in whole or in part, to seek to make the Equipment, Dashboard and/or Documentation (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Equipment, Dashboard and Documentation, as applicable, under this Agreement; or (c) by written notice to Subscriber, terminate this Agreement with respect to all or part of the Equipment, Dashboard and Documentation, and require Subscriber to immediately cease any use of the Equipment, Dashboard and Documentation or any specified part or feature thereof.

8.5.          Sole Remedies.  THIS SECTION 8 SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND PFI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED ACTIONS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE EQUIPMENT, DASHBOARD AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

9. Limitations of Liability.

9.1.  Exclusion of Damages.  IN NO EVENT WILL PFI OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) INCREASED COSTS, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (C) INABILITY TO USE, LOSS, DAMAGE, INTERRUPTION, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (D) LOSS OF GOODWILL OR REPUTATION, OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES; IN EACH CASE REGARDLESS OF WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR WHETHER SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.2.  Cap on Monetary Liability.  IN NO EVENT WILL PFI’S OR ITS AFFILIATES AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PFI UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE ACTION.  NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL PFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ALPHA/BETA SERVICES (AS DEFINED BELOW) UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED ONE AND 00/100 DOLLAR ($1.00).

10. General.

10.1.       Force Majeure.  PFI shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement or the Order Form beyond its control, including, but not limited to, acts of nature, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures.

10.2.       Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.

10.3.       Publicity.  PFI may include Subscriber’s name, logo and/or other information in its lists of current or former customers of PFI in promotional and marketing materials.  Subscriber has the option to request removal of its name or logo by providing a written request to support@precisionfermentation.com.

10.4.       Notices.  All notices under this Agreement will be binding if given in writing and addressed and sent to a Party at the address set forth on the Order Form, or such other address as provided to the other Party from time to time.  Notices will be deemed effectively given (a) when received, if delivered by hand or sent by a nationally recognized overnight courier, or (b) on the third (3rd) day after mailing if sent by certified or registered mail; or (c) when received if sent by electronic mail transmission (where receipt is affirmatively acknowledged by the recipient, excluding auto-receipts).

10.5.       Assignment.  This Agreement is not assignable, transferable or sublicensable by Subscriber except with PFI’s prior written consent.

10.6.       No Third-party Beneficiaries.  This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.7.       Governing Law.  This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision.  Each Party agrees that any action or claim arising out of any dispute in connection with this Agreement, any rights or obligations hereunder to the performance or enforcement of such rights or obligations, to the extent not resolved by mutual agreement or under the terms of Section 10.8 below, shall be brought in the state and federal courts located in Wake County, North Carolina and each Party consents to the exclusive jurisdiction of such courts.  Each Party hereby waives any objection that it may now or hereinafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient court.

10.8.       Arbitration.  PFI may choose for any controversy or claim arising out of or relating to this Agreement or its performance or breach to be settled by arbitration.  The arbitration shall be conducted under the auspices of the American Arbitration Association and in accordance with its Commercial Rules that are in effect at the time arbitration is demanded and as set forth herein.  The dispute shall be heard and decided by a single arbitrator.  The hearing shall be held in the City of Wilmington, Delaware at a location and time to be mutually agreed upon by the Parties, or if they are unable to decide, then at a location and time determined by the arbitrator(s).  The expense of the arbitration shall be borne equally by the Parties.  The arbitrator(s) shall decide the dispute by applying the law selected by the Parties in this Agreement.  The decision of the arbitrator(s) shall be final and binding and any award rendered thereon may be entered in any court having jurisdiction and the Parties expressly agree that the state and federal courts located in the State of Delaware have jurisdiction to confirm the arbitration award and enter judgment thereon.  The Parties hereby waive any and all objections and defenses to such jurisdiction regardless of the nature of such objection or defense.

10.9.       Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its confidentiality and intellectual property-related obligations under this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Each Party also acknowledges and agrees that PFI may seek specific performance of Subscriber’s obligation to pay for any Equipment when such amounts are due under this Agreement.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

10.10.    Entire Agreement. This Agreement, together with the Order Form, constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations by or between the Parties, written or oral.  No oral statements or prior written material not specifically incorporated herein will be of any force and effect, and no changes in or additions to this Agreement will be recognized unless incorporated herein by amendment as provided herein and signed by duly authorized representatives of both Parties. This Agreement may be revised by PFI at any time for any reason, and PFI will provide Subscriber with notice of these changes by any reasonable means at PFI’s discretion, including by providing notice through the Dashboard. Subscriber’s continued use of the Services and/or the Equipment after the date of such notice shall be considered Subscriber’s acceptance of such revisions.  Subscriber can determine when this Agreement was last updated by referring to the “Last updated” legend at the bottom of this Agreement The application of Subscriber’s pre-printed terms or general terms and conditions in any general vendor acknowledgement or Subscriber’s other general purchasing conditions are hereby expressly excluded and objected to by PFI.  This Agreement is a collaborative drafting effort and will not be construed against a Party as the purported drafter. The waiver by either Party of a breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof will not affect the remainder of this Agreement, which will remain in full force and effect and enforceable in accordance with its terms. With respect to any unenforceable provision, the applicable court shall deem the provision modified to the extent necessary, in such adjudicator’s opinion, to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties set forth herein. Headings in this Agreement shall not be used to interpret or construe its provisions.  The following order of precedence will be followed in resolving any inconsistencies between the terms of this Agreement and the terms of any Order Forms, or other documents: first, the terms contained in the body of this Agreement (which may give priority to Order Forms for certain purposes); second, the terms of the Order Forms; third, the terms of any attachment under an Order Form; and fourth, the terms of any other documents referenced in any of the foregoing.

11. Alpha/Beta Subscription. From time to time, PFI may invite Subscriber to try certain new equipment, services, features, or functionality at no additional charge (the “Alpha/Beta Services“). Subscriber may accept or decline any such trial in Subscriber’s sole discretion. Alpha/Beta Services will be clearly designated as alpha, beta, test, trial, verification, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Alpha/Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional or different terms. Unless otherwise set forth in writing, any Alpha/Beta Services trial period will expire upon the earlier of thirty (30) days from the date PFI provides Subscriber with written notice of the expiration thereof and the date that a version of the Alpha/Beta Services becomes generally available to PFI’s customers. PFI may discontinue Alpha/Beta Services at any time at PFI’s sole discretion and may never make them generally available. Subscriber agrees PFI shall have no liability for any harm or damage arising out of or in connection with Alpha/Beta Services. If Subscriber uses the Alpha/Beta Services during any trial period, Subscriber agrees PFI may use or incorporate any suggestions, ideas, developments, or recommendations submitted or developed by Subscriber without compensation or attribution to Subscriber, and Subscriber hereby grants to PFI irrevocable, exclusive, transferable, assignable, all rights, title and interest in and to such suggestions, ideas, developments, or recommendations.

11. Definitions.Any capitalized terms not otherwise defined have the meaning set forth below.

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  For purposes of this Agreement, “control” means direct or indirect ownership or control of 50% of the voting interests of the subject entity.

“Authorized Users” means Subscriber’s or its Affiliates’ employees, contractors and agents that Subscriber authorizes to use the Services on Subscriber’s behalf under the rights granted to Subscriber in this Agreement.

“BrewIQ^® System” refers collectively to PFI’s data analytics solution (physical components, software and Documentation), and its related services, designed to allow Subscribers to monitor their fermentation processes in real time. The BrewIQ^® System includes the Equipment, the Dashboard for analyzing collected data, as well as any additional supplies (such as, per example, cleaning kits) for the proper operation and maintenance of the BrewIQ^® System, as these are further listed in the applicable Order Form.

“Confidential Information” means with respect to any non-public information in any form or medium (whether oral, written, electronic or other) disclosed by a Party (“Discloser“) to the other Party (“Recipient“): (i) the terms of any Order Form, excluding the existence of the Agreement and the identities of the Parties; and (ii) any other data, document or other information marked or identified as “confidential” or that a reasonable person would reasonably expect to be confidential information of the Discloser (including, without limitation, all trade secrets, know-how, processes, unpublished patent applications, product development, price, customer lists, pricing and marketing plans, policies and strategies, details of contracts, operations methods, product development techniques, business acquisition plans, new personnel acquisition plans and all other confidential or proprietary documents and information relating to the business and affairs of the Discloser or any of its Affiliates, including any notes, analyses, compilations, studies, forecasts, interpretations or other documents that are derived from, contain, reflect or are based upon any such information).

“Dashboard” refers to PFI’s proprietary software platform for monitoring fermentation, offered on a software-as-a-service basis, which allows Subscriber to manage fermentation settings, use of the Fermentation Hub, and grants access to fermentation status, data and trends in real-time, at any time and from any web-enabled device.

“Documentation” means any user guides and help files made available by PFI for use with the Services, as updated from time to time.

“Effective Date” refers to the date indicated in the Order Form as the commencement date for the provision of the Services by PFI to Subscriber.

“Equipment“ refers to any hardware devices and related materials of the BrewIQ^® System that are provided to Subscriber by PFI for the fermentation processes.  Equipment includes, but it is not limited to, Fermentation Hubs, Tank Connectors, automated cleaning stations such as the SaniStation™ , and/or any other devices PFI may offer as further described in the applicable Order Form.

“Fees” means the fees, including subscription fees, listed in the applicable Order Form for access to and use of the Services.

“Fermentation Data” refers to the real-time information, results, and analytics regarding the fermentation processes occurring in the monitored fermentation tank outputted by the BrewIQ^® System, and which is accessed through the Dashboard.

“Fermentation Hub” refers to PFI’s proprietary multi-sensor array device(s) (including embedded firmware) designed to be affixed to fermentation tanks (and which includes retrofitting capabilities for existing fermentation tanks) used for reporting fermentation data in real time.

“Installation Services” refers to the professional services provided by PFI for the installation and configuration of the BrewIQ^® System, to get it ready for use by Subscriber.

“Intellectual Property of PFI” means all intellectual property owned by, or licensed to, PFI, including but not limited to the following, (i) all patents, trademarks, trade dress, service marks, copyrights, or trade secrets (in each case including any applications therefor and whether or not registered or registrable), (ii) all datasets, algorithms, data analytics, data cleaning and processing methodologies, statistical methods, inventions or works of authorship (whether in tangible form or otherwise), and (iii) any software owned, developed or created (including the Services) in whole or in part by PFI at any time, whether prior to or during the Initial Term or Renewal Term(s); as all of this intellectual property is embodied in or practiced by any PFI products and services.

“Order Form” means an ordering document for Subscriber’s subscription to the Services that incorporates this Agreement by reference, and it is executed by both Parties.

“Permitted Purposes” means use of the Fermentation Hub(s) by Subscriber in its brewing process for beer, cider, mead, kombucha, wine or off grain-fermented alcohol with alcohol-by-volume of less than fifty percent (ABV 50%), and not for use with on grain-fermented alcohol unless otherwise authorized by PFI.

“Premises” refers to all of those physical location(s) of Subscriber authorized by PFI in one or more Order Form(s) for the installation of the Fermentation Hub(s) and Tank Connector(s).

“Services“ means, collectively, the access and use of PFI’s proprietary BrewIQ^® System and all related services provided by PFI (including Installation Services), as further described in the applicable Order Form.

“Subscriber Data” means any data and information Subscriber provides to PFI in relation to its use of the Services (excluding any PFI Confidential Information and Intellectual Property of PFI). For sake of clarity, Subscriber Data does not include, and the Services do not require, the provision or collection of any personal data.

“Subscription Term” means, with respect to the Order Form, collectively the Initial Term and any Renewal Term(s), as these are defined in Section 5.1.

“Tank Connector(s)” refers to those connectors affixed to a fermentation tank that allow the Fermentation Hub to be connected to such tank without the need to first empty the contents of the fermentation tank, thereby allowing the sensors of the Fermentation Hub to be used with any fermentation tank that has a Tank Connector affixed.

“Updates” mean all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Services and Documentation, as developed by PFI and made generally available for use without a separate charge to Subscribers.

Last updated: October 9, 2024

©2024 Precision Fermentation, Inc.