Company is defined as Biome Makers, Inc., its affiliates, employees, agents, subsidiaries, its products and applications as for example the BeCrop™, its proprietary vineyard microbiome surveillance tool.
User is defined as the individual, company, organization, employer, principal, agent, affiliate, or other legal entity accessing the Website and/or requesting company services. If User is a True Owner, User shall refer to all True Owners of the User Sample, and any/all terms shall apply to all True Owners. If User is an authorized representative of a True Owner, User shall refer to the authorized representative and any and all True Owners of the User Sample.
3. Company General Content
Company General Content is defined as all documents, files, electronic media, discussions, information, meetings, telephone and web conference calls, whether visual, written or audible data, whether displayed on the Website or provided directly to User, which information was not obtained exclusively from an individual user and may include content from one or more third party licensors. Unless otherwise specified herein, Company General Content constitutes the exclusive work product and intellectual property of Company and has been developed and maintained at the cost and expense of Company and is protected by domestic and international copyright laws.
4. User Results and Recommendations
User Results and Recommendations is defined as the results and recommendations that are created exclusively for User, and consists of test results, documents, files, electronic media, discussions, meetings, telephone and web conference calls, whether visual, written or audible data, information transmitted exclusively to User. User Results and Recommendations constitutes the exclusive work product and intellectual property of Company and have been developed and maintained at the cost and expense of Company.
Website is defined as “www.becrop.com”, or any successor, affiliate, subsidiary web address or its website products.
6. Company Intellectual Property Rights
7. User Sample
User Sample (hereinafter “User Sample” or “User’s Sample”) means the soil or any other environmental sample extracted by User and transmitted to Company, including, but not limited to, soil, grapes, must, alcoholic fermentation, malolactic fermentation, microbes, particles, containers, barrels, and any bottle used by User. The User Sample shall mean and refer to the tangible and intangible qualities of the soil, and shall specifically include any data extracted by Company with respect to the composition of the soil and any microbes found in the soil, as well as any data transmitted to Company by the User through the Website.
PERMITTED WEBSITE USE
1. User may create a bookmark in User’s browser to the home page of the Website. User may not otherwise download, display, reproduce, modify or create a derivative work of, transmit, sell, distribute or in any way exploit Company General Content, Company Intellectual Property Rights, or otherwise link the Company to any other website including scoring except as permitted herein.
2. User may read any Company General Content found on the Website for free for personal non-commercial purposes.
3. User may invite and point others to the Website including, by linking to the Website, provided that User does so in a way that is fair and legal and does not damage Company’s reputation, and provided further, that User does not establish a link in such a way as to suggest any form of association, approval or endorsement without Company’s express written consent.
4. User agrees that all posting, submitting, publishing, displaying, transmitting or uploading of any text, photos, videos, audios, or other materials or information will form part of the User Sample and will be governed by Section J below.
5. User acknowledges that the Website may contain links to other websites which connect with other third party websites. User and Company agree that Company assumes no responsibility and specifically does not endorse any other such websites.
UNPERMITTED WEBSITE USE
2. User understands that Company may suspend, terminate, restrict or otherwise limit your use of the Website, Company General Content or Company Services, at any time, without notice or demand and without liability, if Company have reason to believe User is violating these Terms or Use. Any such violation may result in criminal and civil liability. Company reserves the right to discontinue or make changes to the Website or Company General Content at any time, in its sole discretion, without notice. The Website and the Company General Content are not necessarily complete or up-to-date. By using the website, User agrees that Company is under no obligation to update such material.
3. Unauthorized or unapproved use of the Licensed Materials (defined below) or Website content may constitute copyright infringement and may subject User to civil and criminal penalties under United States and international laws and treaties.
REVIEWS, COMMENTS AND OTHER CONTENTS
Users may post comments, rewiews, photos, and other content; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Biome Makers, Inc. reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
USER’S ACCOUNT, PASSWORD AND SECURITY
If you use any Biome Makers, Inc. service, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or any other electronic device, and you agree to accept responsibility for all activities that occur under your account or password. Biome Makers, Inc reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
DIGITAL MILLENIUM COPYRIGHT ACT
1. If User is a copyright owner or an agent of a copyright owner, and User believes that the Website infringes the User’s copyright protections, which means the unauthorized or not permitted use of copyrighted material or other intellectual property rights, then User may submit a notification pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”) by providing Company or the Designated Copyright Agent with the following information in writing (“Notice”)
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “Complainant”)
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material
- Information reasonably sufficient to permit Company to contact the Complainant, such as an address, telephone number, and, if available, an electronic mail address at which the Complainant may be contacted
- A statement that the Complainant has a good faith belief that use of the material in the manner complained of is not authorized by the Complainant, its agent, or the law
- A statement that the information in the notification is accurate, and under penalty of perjury, that the Complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
2. The above information must be included in the Notice and submitted to our Designated Copyright Agent by mail and email to the following addresses:Biome Makers, Inc.
Attention: DMCA agent
890 Embarcadero Drive
West Sacramento, CA 95605
3. If any User submitted materials are removed for alleged infringement and User believes it should not have been, User may send us a written counter-notice (“Counter-Notice”), which must include:
- A physical or electronic signature of the alleged infringer
- Identification of the material removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled
- A statement under penalty of perjury that the alleged infringer has a good-faith belief that the material was removed or access to it disabled as a result of error
- The alleged infringer's name, address, and telephone number
- A statement of consent to jurisdiction in federal district court and that the alleged infringer consents to service of process from the complaining party or its agent.
4. Company will respond to all such notices in compliance with applicable law. Company has the right to remove content alleged to be infringing, at its sole discretion, without prior notice.
5. Please also note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
COMPANY SUBSCRIPTION PACKAGES
1. Company Subscription Packages refer to the services that Company offers through the Website to assist Users in wine differentiation and quality control (the “Subscription Packages”).
2. User and Company agree that the term of the applicable Subscription Package will be the term duration displayed on the Website at the time User pays for the applicable Subscription Package (the “Subscription Term”).
3. User and Company agree that the number of User Samples and corresponding reports authorized under a Subscription Package shall be those displayed on the Website at the time User pays for the Subscription Package.
4. User agrees to pay in advance for all Subscription Packages
5. User agrees that the fees for Subscription Package will be those fees displayed on the Website at the time User requests and pays for the applicable Subscription Package
7. User agrees to reimburse Company for any costs, expenses, or fees expended by Company in connection with any collection efforts against User, including reasonable internal and outside attorneys’ fees.
8. If you need to cancel your microbiome test for any reason, please email us and we will refund 100% of your fee as long as you provide us not less than 1 hours’ notice. Once past this time it is nonrefundable. If you want to cancel the subscription at any time, you have to notice us.
COMPANY PERFORMANCE UNDER SUBSCRIPTION PACKAGES
1. Company shall provide assistance to User in coordinating and collecting User Samples, including, but not limited to, a sample collecting tools.
2. Company shall provide User access to Company General Content and/or User Results and Recommendations in accordance with the applicable Company Subscription Package.
3. Company shall provide Subscriber resources for understanding Subscriber Results and Recommendations, which may be provided in the way that Company deems most appropriate in Company’s sole discretion, including, but not limited to, on Company’s mobile application, website, e-mail account, or in-person
USER PERFORMANCE UNDER SUBSCRIPTION PACKAGES
1. User shall actively participate in the sample collection process, including, but not limited to, acting reasonably to return samples to Company.
2. User shall provide all necessary information regarding User Sample for Company to generate Company General Content and User Results and Recommendations within a reasonable time after Company requests such information
3. User shall follow any and all technical and scientific recommendations for sample collecting.
SUBSCRIPTION PACKAGE TERMINATION
1. User represents and warrants to Company that User is either: (a) an owner of the User Sample who, either individually or jointly with others, holds all right, title, and interest in the User Sample and has all authority to submit the User Sample to Company (“True Owner”); or (b) is an authorized representative of a True Owner, and has all legal authority to submit the User Sample on behalf of a True Owner.
2. User, on behalf of himself/herself/itself or on behalf of a True Owner, hereby irrevocably assigns, transfers and conveys to Company, all right, title, and interest in the User Sample to Company for whatever use Company deems appropriate including, but not limited to, commercial purposes.
3. As between the parties, Company shall hold title to all tangible and intangible property rights and interests associated with all User Samples and all uses of User’s Sample.
4. Notwithstanding the foregoing, Company shall never disclose any confidential information of User unless authorized herein.
1. Company grants to True Owner a non-transferable and non-exclusive license to access User Results and Recommendations and Company General Content (the “Licensed Information”) during the applicable Subscription Term for the sole benefit of True Owner
2. Except as specifically set forth herein, Company or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Licensed Information.
3. User agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Licensed Information.
4. Neither True Owner nor User may transfer, assign, sell, or sublicense the Licensed Information to the benefit of any person or entity other than True Owner.
1. User, in consideration for Company’s services, hereby releases Company from liability and waives its right to sue Company from any and all claims related to Company Services and/or Licensed Information and/or any and all content displayed on Company’s Website, including but not limited to claims of physical injury, illness, death, economic loss, lost profits, and/or any events in anyway related to Company Services, licensed information, or content displayed on the Website.
2. Notwithstanding the foregoing, in the event that Company is held responsible for any damage to User, Company’s liability shall not exceed the total fees paid to Company under the applicable Subscription Term.
3. User understands that the Company Services and Website, by its very nature, includes certain inherent risks that cannot be eliminated regardless of the care taken to avoid injuries whether economic or physical, which include, but are not limited to, any unintended consequences User experiences in using Licensed Information or Website content with regard to User’s soil, wine, profits, health, environment or well-being. User understands and appreciates the risks that are inherent in using Company’s Services and the Website. User hereby asserts that its participation is voluntary and that User knowingly assumes all such risks. User further understands that User is ultimately responsible for its own safety.
4. In consideration of permission to participate in Company’s Services and access the Website, Subscriber agrees, for itself, its heirs, personal representatives, agents, affiliates or assigns, to defend, hold harmless, indemnify and release Company, its officers, employees, agents, from and against any and all claims, demands, actions, or causes of action of any sort on account of damage to personal property, or personal injury, or death which may result from User’s participation in Company’s Company Services. This release includes claims based on the negligence of the Company and its officers, employees, agents, and volunteers, but expressly does not include claims based on their intentional misconduct or gross negligence. User understands that by agreeing to this clause User is releasing claims and giving up substantial rights, including its right to sue.
DISCLAIMER OR WARRANTIES
2. COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AT LAW OR IN EQUITY IN RESPECT OF THE COMPANY OR THE COMPANY’S SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE ASSETS, LIABILITIES OR OPERATIONS, INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER THE COMPANY NOR ANY SELLER PARTY MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO ANY PROJECTIONS, ESTIMATES OR BUDGETS DELIVERED TO OR MADE AVAILABLE TO PURCHASER OF FUTURE REVENUES, FUTURE RESULTS OF OPERATIONS (OR ANY COMPONENT THEREOF), FUTURE CASH FLOWS OR FUTURE FINANCIAL CONDITION (OR ANY COMPONENT THEREOF) OF THE COMPANY AND ITS SUBSIDIARIES OR THE FUTURE BUSINESS AND OPERATIONS OF THE COMPANY AND ITS SUBSIDIARIES.
1. Confidential Information means the Company Intellectual Property Rights; the ownership information of the User in relationship to the User Sample; the specific geographic information of the User Sample, and any other information that would directly identify the content or character of User Sample with True Owner.
2. Each Party agrees to hold all Confidential Information of the other party in strict confidence.
PRIVACY AND DATA USE
Subject to the limitations set forth in Paragraph USER SAMPLES I above, any provision that applies to User, True Owner, or Company, shall apply to all agents, employees, representatives, assigns, successors, subsidiaries.