These additional terms and conditions apply to the BrewMonitor® Master Agreement (the “Additional Terms”), and are subject to change at PFI’s discretion.
1. Console Agreement. The additional terms of use that apply to the Console are posted at https://app.precisionfermentation.com/.
2.4 Personal Property. Customer acknowledges and agrees that the Sensor Hub and Tank Connector is deemed to be personal property and shall not be deemed a “fixture” under applicable law, even if the Sensor Hub and Tank Connector, or any part thereof, may be or becomes affixed or attached to real property or any improvements. Upon PFI’s written request, Customer 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 preport to have in the Sensor Hub and/or Tank Connector arising from its interest in the real property.
2.5 Return of Sensor Hub(s) / Tank Connector(s); Access to Premises. Upon the expiration or termination of this Master Agreement or the Service Term, Customer must, at its expense, promptly deinstall all Sensor Hubs and Tank Connectors. Customer shall cause each Sensor Hub and/or Tank Connector returned under this Master 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 Customer, ordinary wear and tear expected, and Customer shall ship all Sensor Hub(s) and/or Tank Connector(s) to PFI. In the event that Customer fails to ship any Sensor Hub(s) and/or Tank Connector(s) back to PFI, Customer authorizes PFI (through any of its officers, employees or agents) to access the Premises to remove the Sensor Hub and/or Tank Connector from the Premises. However, PFI’s failure to remove any Sensor Hub and/or Tank Connector will not be deemed abandonment of such Sensor Hub or Tank Connector.
3.1. Installation Services. If Customer has chosen to receive installation services (the “Installation Services”), Customer shall prepare and render the Premises safe for the installation of the Sensor Hub(s) and Tank Connector(s). Customer shall grant access to the Premises to allow PFI or its designated representative to install each Sensor Hub and Tank Connector. Otherwise, Customer is solely responsible for the proper installation and configuration of each Sensor Hub and Tank Connector 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 BrewMonitor® system. Customer shall permit PFI (through any of its officers, employees or agents) on reasonable notice to inspect the Sensor Hub(s) and Tank Connector(s) during regular business hours, and in compliance with Customer’s reasonable security procedures.
4. Damaged Sensor Hub or Tank Connector. If PFI determines that Customer must replace a Tank Connector or one or more parts of the Sensor Hub, PFI will provide or identify such replacement parts and provide instructions to Customer regarding the replacement of such parts. If PFI determines that the Sensor Hub or a Tank Connector cannot be repaired, PFI will replace the damaged Sensor Hub or Tank Connector, in which case Customer must promptly return the damaged or defective Sensor Hub or Tank Connector to PFI in accordance with PFI’s instructions. The repair or replacement of a damaged or defective Sensor Hub or Tank Connector as described in this Section 4.2 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 Sensor Hub or Tank Connector by Customer or Customer personnel, in which case Customer 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 Sensor Hub or Tank Connector by Customer or Customer personnel will be determined in PFI’s reasonable discretion. PFI will have the right to presume misuse or other improper operation or handling by Customer in the event Customer 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 Customer is required to pay for a replacement Sensor Hub or Tank Connector, Customer will be charged the then-applicable price for a Sensor Hub and/or Tank Connector.
4.3. Required Upgrades. Customer may not make or cause to be made any other upgrades to the Sensor Hub and Tank Connectors unless approved in writing by PFI in each case. To the extent Customer incorporates or installs any such Required Upgrades or other authorized upgrades to the Sensor Hub and Tank Connectors, immediately upon any incorporation or installation, such Required Upgrade or other upgrade is deemed a part of the Sensor Hub and Tank Connectors to the same extent as though originally incorporated or installed in the Sensor Hub and Tank Connectors.
5.1. Loss. In the event that Customer has not paid for any given Sensor Hub or Tank Connector, Customer shall bear all risk of loss, damage, destruction, theft and condemnation to or of any such Sensor Hub or Tank Connector from any cause whatsoever (“Loss of the Devices”), and Customer shall be responsible for payment to PFI of the then-applicable price for a Sensor Hub and/or Tank Connector.
5.2. Insurance Requirements. Customer will maintain in full force and effect during the Service 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 Sensor Hub and Tank Connector for each Sensor Hub and Tank Connector that Customer receives under the Master Agreement.
6.1. Monthly Recurring Payments; Third Party Payment Processor. Fees will be charged to the account provided by Customer, and all Fees charged are non-refundable. Customer 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 Customer with respect to the processing of such payments. Customer hereby authorizes PFI to use such third-party payment processor to charge the Fees, on a recurring annual basis, to Customer’s account. If Customer is making payments via credit card or ACH, please note that if your 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 ($5) charge for each attempt that is returned NSF, which will be initiated as a separate transaction from the authorized recurring payment. The origination of ACH transactions to the Customer's account must comply with the provisions of U.S. law. The Customer 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 order form in Exhibit A.to the Master Agreement.
6.3. Taxes. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, as well as business personal property taxes. Customer is responsible for providing PFI with any tax exemption certificates that it wishes to exercise. Customer shall not be responsible for taxes imposed on PFI’s income.
6.4. Late Payment. All amounts payable to PFI under this Master Agreement will be paid by Customer to PFI in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Service Credits (as such term is defined in the Console Agreement) issued by PFI pursuant to the Console Agreement or any deduction or withholding of tax as may be required by applicable law).
6.5. Financing.
In addition to an option for direct purchase of the BrewMonitor® system from PFI, PFI may offer a financing option through a third party financing company. Under the direct purchase option, Customer is obligated to pay to PFI, at the time the Master Agreement is signed, the Onboarding fee, the Service & Maintenance Fee, and the first Monthly Service Fee. On each anniversary of the Effective Date during the Service Term (as that term is defined in Seciton 7 below), Customer is obligated to pay to PFI the Service & Maintenance Fee. If Customer chooses the third party financing option, Customer will be required to complete a credit application with PFI’s third party financing entity, and will be subject to such third party’s installment payment agreement, and the terms of such third party installment payment agreement shall supersede any conflicting terms in this Section 6.
8.1. Confidential Information. Each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party either marks as confidential, or should reasonably be understood to be confidential based upon the circumstances of its disclosure or the nature of the information, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing. Without limiting the foregoing, all Documentation and analysis of Data are the Confidential Information of PFI and the Customer Data (as defined in the Console Agreement) is the Confidential Information of Customer. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Master Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Master Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’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 Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
8.2. Protection of Confidential Information. Each Party is responsible for ensuring its employees’, officers’, directors’, agents’ and representatives’ compliance with, and be responsible and liable for any of such parties’ non-compliance with, the obligations of confidentiality under the Master Agreement. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by Applicable Law, the Receiving Party will (a) if legally permitted prior to such disclosure, promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.2; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such compelled disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.2, the Receiving Party remains required by Applicable Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
9. Representations and Warranties. In the event that Customer avails itself of the third party financing option, Customer acknowledges and agrees that additional representation and warranties shall apply as set forth in the third party installment payment agreement.
10. Indemnification.
10.1. Customer Indemnification. Customer 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) Customer Data, including any processing of Customer Data by or on behalf of PFI in accordance with this Master Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer, including PFI’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by PFI; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Master Agreement; or (d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Customer personnel, or any third party acting on behalf of Customer or Customer personnel, in connection with this Master Agreement.
10.2. PFI Indemnification. PFI will indemnify, defend and hold harmless Customer (“Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee arising out of any Action brought by a third party (other than an affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer’s use of the Sensor Hubs or Tank Connectors or Documentation in compliance with this Master 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 Sensor Hubs or Tank Connectors, Console 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 a Sensor Hub, or a Tank Connector, or the Console 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; or (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of PFI.
10.3. Indemnification Procedure. Each Party will promptly notify the other Party in writing in accordance with Section 13.4 (Notices) of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2. 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 10.3 will not relieve the Indemnitor of its obligations under this Section 10 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.
10.4. Mitigation. If any of the Sensor Hubs or Tank Connectors, Console 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 Customer’s or Customer personnel’s use of the Sensor Hubs or Tank Connectors, Console or Documentation is enjoined or threatened to be enjoined, PFI may, at its option and sole cost and expense (a) obtain the right for Customer to continue to use the Sensor Hubs and Tank Connectors, Console and/or Documentation as contemplated by this Master Agreement; (b) modify or replace the Sensor Hubs and/or Tank Connectors, Console and/or Documentation, in whole or in part, to seek to make the Sensor Hubs or Tank Connectors, Console 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 Sensor Hubs, Tank Connectors, Console and Documentation, as applicable, under this Master Agreement; or (c) by written notice to Customer, terminate this Master Agreement with respect to all or part of the Sensor Hubs, Tank Connectors, Console and Documentation, and require Customer to immediately cease any use of the Sensor Hubs, Tank Connectors, Console and Documentation or any specified part or feature thereof.
10.5. Sole Remedies. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PFI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED ACTIONS THAT THIS MASTER AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SENSOR HUB, TANK CONNECTOR, CONSOLE AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
11. Limitations of Liability.
11.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PFI BE LIABLE UNDER OR IN CONNECTION WITH THIS MASTERAGREEMENT 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 SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL PFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MASTER AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PFI UNDER THIS MASTER AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE ACTION.
12. Miscellaneous.
12.9. No Breach or Default for Force Majeure. In no event will PFI be liable or responsible to Customer, or be deemed to have defaulted under or breached this Master Agreement, for any failure or delay in fulfilling or performing any term of this Master Agreement, if and to the extent such failure or delay is caused by any circumstances beyond PFI’s reasonable control (a “Force Majeure Event”), including acts of god, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Master Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Master Agreement if a Force Majeure Event continues substantially uninterrupted for a period of at least thirty (30) days.
12.10. Further Assurances. Upon a Party’s reasonable request, the other Party will, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Master Agreement.
12.11. Interpretation. For purposes of this Master Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Master Agreement as a whole; and (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. The Parties intend this Master Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
12.12. Headings. The headings in this Master Agreement are for reference only and do not affect the interpretation of this Master Agreement.
12.13. No Third-party Beneficiaries. This Master 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 Master Agreement.
12.14. Arbitration. Any controversy or claim (including, without limitation, any claim based on warranty, contract, negligence, misrepresentation, or other basis) arising out of or relating to this Master Agreement or its performance or breach shall 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. In the event of a conflict between the procedures set forth herein and the Commercial Rules, these procedures shall take precedence. If monetary claims asserted in the arbitration are less than one hundred thousand dollars ($100,000) the dispute shall be heard and decided by a single arbitrator, but if any monetary claim is in excess of one hundred thousand dollars ($100,000), the dispute shall be heard and decided by a panel of three (3) arbitrators. If a three-person panel of arbitrators is employed, then all decisions by the panel shall be by a majority of the arbitrators. The arbitrator(s) shall allow the Parties to obtain discovery as may reasonably be requested by a party, including use of interrogatories, depositions, and inspections of things or land. 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 arbitration shall be conducted over the course of consecutive business days and weeks. The hearing shall be recorded stenographically and a transcript prepared if requested by either Party. The expense of same shall be borne equally by the Parties. Not less than ten (10) days prior to the hearing, the Parties shall submit briefs to the arbitrator(s) setting for the each parties’ contentions concerning the facts and the law. Within thirty (30) days following the close of the hearing, the Parties shall submit post-hearing briefs to the arbitrator(s). Within thirty (30) days after the timely submission of post-hearing briefs, the arbitrator(s) shall enter a written award concisely setting forth the grounds for the decision. 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.
12.15. 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 Master 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 Customer’s obligation to pay any Sensor Hub and/or Tank Connector when such amounts are due under this Master Agreement. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
