Feel Better Tomorrow After Drinks – Terms and Conditions
- FDA Statement
- Non-Disclosure and Confidentiality
- Hold Harmless (Indemnity)
- Disputes with company
A. FDA STATEMENT
These supplements and statements has not been evaluated by the United States Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.
B. NON-DISCLOSURE AND CONFIDENTIALITY
This Non-Disclosure and Confidentiality Agreement (this “Agreement”) is entered into as of July 26, 2017 by and between Beta Farm Incorporated, a Nevada Corporation (“Beta Farm”), and the receiver and releasee, as an Individual (the “Program Participant”).
Beta Farm and the Program Participant have indicated an interest in exploring a potential business relationship relating to: The sampling and usage of Betafarm’s alcohol recovery products and other dietary supplements (the “Transaction”). In connection with the parties’ respective evaluation of the Transaction, Beta Farm, its respective affiliates and its respective directors, officers, employees, agents or advisors (collectively, “Representatives”) may provide or grant access to certain confidential and proprietary information to the Program Participant. The party disclosing its Confidential Information (as defined herein) to the other party is hereafter referred to as the “Disclosing Party.” The party receiving the Confidential Information of the Disclosing Party is hereafter referred to as the “Receiving Party.” In consideration for being furnished Confidential Information, Beta Farm and the Program Participant agree as follows:
1. Confidential Information. The term “Confidential Information” as used in this Agreement shall mean any data or information that is competitively sensitive material and not generally known to the public, including, but not limited to, information relating to any of the following: improvements, formulas, trade secrets, Ingredients, which the Disclosing Party considers confidential.
2. Exclusions from Confidential Information. The obligation of confidentiality with respect to Confidential Information will not apply to any information:
a. If the information is or becomes publicly known and available other than as a result of prior unauthorized disclosure by the Receiving Party or any of its Representatives;
b. If the information is or was received by the Receiving Party from a third party source which, to the best knowledge of the Receiving Party or its Representatives, is or was not under a confidentiality obligation to the Disclosing Party with regard to such information;
c. If the information is disclosed by the Receiving Party with the Disclosing Party’s prior written permission and approval;
d. If the information is independently developed by the Receiving Party prior to disclosure by the Disclosing Party and without the use and benefit of any of the Disclosing Party’s Confidential Information; or
e. If the Receiving Party or any of its Representatives is legally compelled by applicable law, by any court, governmental agency or regulatory authority or by subpoena or discovery request in pending litigation but only if, to the extent lawful, the Receiving Party or its Representatives give prompt written notice of that fact to the Disclosing Party prior to disclosure so that the Disclosing Party may request a protective order or other remedy to prevent or limit such disclosure and in the absence of such protective order or other remedy, the Receiving Party or its Representatives may disclose only such portion of the Confidential Information which it is legally obligated to disclose.
3. Obligation to Maintain Confidentiality. With respect to Confidential Information:
a. The Receiving Party and its Representatives agree to retain the Confidential Information of the Disclosing Party in strict confidence, to protect the security, integrity and confidentiality of such information and to not permit unauthorized access to or unauthorized use, disclosure, publication or dissemination of Confidential Information except in conformity with this Agreement;
b. The Receiving Party and its Representatives shall adopt and/or maintain security processes and procedures to safeguard the confidentiality of all Confidential Information received by the Disclosing Party using a reasonable degree of care, but not less than that degree of care used in safeguarding its own similar information or material;
c. Upon the termination of this Agreement, the Receiving Party will ensure that all documents, memoranda, notes and other writings or electronic records prepared by it that include or reflect any Confidential Information are returned or destroyed as directed by the Disclosing Party;
d. If there is an unauthorized disclosure or loss of any of the Confidential Information by the Receiving Party or any of its Representatives, the Receiving Party will promptly, at its own expense, notify the Disclosing Party in writing and take all actions as may be necessary or reasonably requested by the Disclosing Party to minimize any damage to the Disclosing Party or a third party as a result of the disclosure or loss; and
e. The obligation not to disclose Confidential Information shall remain in effect until 5 years from the date hereof or until the Confidential Information ceases to be a trade secret, except to the extent that such Confidential Information is excluded from the obligations of confidentiality under this Agreement pursuant to Paragraph 2 above.
4. Non-Disclosure of Transaction. Without the Disclosing Party’s prior written consent, neither the Receiving Party nor its Representatives shall disclose to any other person, except to the extent, the provisions of Paragraph 2 apply: (a) the fact that Confidential Information has been made available to it or that it has inspected any portion of the Confidential Information; (b) the fact that the Disclosing Party and the Receiving Party are having discussions or negotiation concerning the Transaction; or (c) any of the terms, conditions or other facts with respect to the Transaction.
5. Representatives. The Receiving Party will take reasonable steps to ensure that its Representatives adhere to the terms of this Agreement. The Receiving Party will be responsible for any breach of this Agreement by any of its Representatives.
6. Disclaimer. There is no representation or warranty, express or implied, made by the Disclosing Party as to the accuracy or completeness of any of its Confidential Information. Except for the matters set forth in this Agreement, neither party will be under any obligation with regard to the Transaction. Either party may, in its sole discretion: (a) reject any proposals made by the other party or its Representatives with respect to the Transaction; (b) terminate discussions and negotiations with the other party or its Representatives at any time and for any reason or for no reason; and (c) change the procedures relating to the consideration of the Transaction at any time without prior notice to the other party.
7. Remedies. Each party agrees that use or disclosure of any Confidential Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which: (a) money damages may not be a sufficient remedy for any breach of this Agreement by such party; (b) the other party may be entitled to specific performance and injunction and other equitable relief with respect to any such breach; (c) such remedies will not be the exclusive remedies for any such breach, but will be in addition to all other remedies available at law or in equity; and (d) in the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final non-appealable order that one party, or any of its Representatives, has breached this Agreement, such party will be liable for reasonable legal fees and expenses incurred by the other party in connection with such litigation, including, but not limited to, any appeals.
8. Notices. All notices given under this Agreement must be in writing. A notice is effective upon receipt and shall be sent via one of the following methods: delivery in person, overnight courier service, certified or registered mail, postage prepaid, return receipt requested, addressed to the party to be notified at the below address or by facsimile at the below facsimile number or in the case of either party, to such other party, address or facsimile number as such party may designate upon reasonable notice to the other party.
Beta Farm Incorporated
2248 Meridian Blvd SteH
Minden, NV 89423
9. Termination. This Agreement will terminate on the earlier of: (a) the written agreement of the parties to terminate this Agreement; (b) the consummation of the Transaction; or (c) 5 years from the date hereof.
10. Amendment. This Agreement may be amended or modified only by a written agreement signed by both of the parties.
11. Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada, without regard to the principles of conflict of laws. Each party consents to the exclusive jurisdiction of the courts located in the State of Nevada for any legal action, suit or proceeding arising out of or in connection with this Agreement. Each party further waives any objection to the laying of venue for any such suit, action or proceeding in such courts.
12. Miscellaneous. This Agreement will inure to the benefit of and be binding on the respective successors and permitted assigns of the parties. Neither party may assign its rights or delegate its duties under this Agreement without the other party’s prior written consent. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced by a writing signed by the party and any such waiver will be limited to the terms of such writing.
This Hold Harmless (Indemnity) Agreement (this “Agreement”) is made as of this __________ (the “Effective Date”) by and between Beta Farm Incorporated,(“Indemnitor”), and the Program Participant, (“Indemnitee”). Indemnitor and Indemnitee may be referred to individually as “Party” and collectively as “Parties”.
WHEREAS, Indemnitor desires to participate in the following activity performed or hosted by Indemnitee: Betafarm’s alcohol recovery products and other dietary supplements, in accordance with the __________ dated __________ (the “Activity”).
NOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, Indemnitor and Indemnitee agree as follows:
1. Indemnification. To the extent permitted by law, Indemnitor will indemnify, defend and hold harmless Indemnitee from any and all claims, actionsd, liabilities, suits, injuries, demands, obligations, losses, settlements, judgments, damages, fines, penalties, costs and expenses, including attorney’s fees and other expenses, (collectively, a “Claim”) arising out of or relating to any act or omission by the Indemnitor in connection with the performance of the Activity.
2. Exceptions. Indemnitor’s obligation to indemnify, defend and hold harmless Indemnitee shall not extend to any Claim arising from the sole negligence or willful misconduct of Indemnitee. Indemnitor is not obligated to indemnify Indemnitee against any Claim to the extent the Indemnitee has been reimbursed for such Claim under an insurance policy.
3. Notice of Claim. Indemnitee must provide Indemnitor notice of any Claim within 30 days after obtaining knowledge of such Claim. Such notice will set forth in detail the Claim and the basis for indemnification under this Agreement.
4. Duty to Defend. In the event any Claim is brought against Indemnitee within the scope of this Agreement, Indemnitor reserves the right to assume the defense of the Claim. If Indemnitor elects not to assume the defense of the Claim, Indemnitee may pursue its own defense of the Claim and seek reimbursement from the Indemnitor. If Indemnitor assumes the defense of the Claim, Indemnitor shall not settle any Claim without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld. If Indemnitee pursues its own defense of the Claim, Indemnitee shall not settle any Claim without the prior written consent of Indemnitor, which consent shall not be unreasonably withheld.
5. Mutual Representations. The Parties represent and warrant that they are duly authorized and have the power and authority to execute and deliver this Agreement, and this Agreement constitutes a legally, valid and binding obligation on the Parties.
6. Amendments. This Agreement may be amended or modified only by written agreement signed by all Parties.
7. Notices. Any notice or other communication given or made to a Party under this Agreement shall be in writing and delivered by hand, sent overnight courier service or sent by certified or registered mail, return receipt requested, to the address stated above, or to another address as that Party may subsequently designate by notice, and shall be deemed given on that date of delivery.
8. Governing Law. The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of Nevada not including its conflicts of law provisions.
9. Disputes. Any dispute arising from this Agreement shall be resolved through mediation. If the dispute cannot be resolved through mediation, then the dispute will be resolved through binding arbitration conducted in accordance with the rules of the American Arbitration Association.
10. No Waiver. No Party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by any Party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.
11. Assignment. No Party may assign its rights or delegate its duties under this Agreement without the other Party’s prior written consent.
12. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, heirs, administrators, executors, successors and permitted assigns.
13. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together, shall constitute one and the same document.
15. Headings. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction or interpretation of any provision of this Agreement.
16. Entire Agreement. This Agreement contains the entire understanding between the Parties and supersedes and cancels all prior agreements of the Parties, whether oral or written, with respect to the subject matter.
D. GENERAL RELEASE
This General Release (this “Release”) is made this 26 day of July, 2017, by and between the Program Participant (“Releasor”) and Beta Farm Incorporated (“Releasee”).
1. Releasor and anyone claiming on behalf of Releasor releases and forever discharges Releasee and its affiliates, successors and assigns, officers, employees, representatives, partners, agents and anyone claiming through them (collectively, the “Released Parties”), in their individual and/or corporate capacities from any and all claims, liabilities, obligations, promises, agreements, disputes, demands, damages, causes of action of any nature and kind, known or unknown, which Releasor has or ever had or may in the future have against Releasee or any of the Released Parties arising out of or relating to: Alcohol recovery supplement market trial and other dietary supplements (“Claims”).
2. This Release shall not be in any way construed as an admission by the Releasee that it has acted wrongfully with respect to Releasor or any other person, that it admits liability or responsibility at any time for any purpose, or that Releasor has any rights whatsoever against the Releasee.
3. This Release shall be binding upon and inure to the benefit of the parties and their respective heirs, administrators, personal representatives, executors, successors and assigns. Releasor has the authority to release the Claims and has not assigned or transferred any Claims to any other party. The provisions of this Release are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision. This Release constitutes the entire agreement between the parties and supersedes any and all prior oral or written agreements or understandings between the parties concerning the subject matter of this Release. This Release may not be altered, amended or modified, except by a written document signed by both parties. The terms of this Release shall be governed by and construed in accordance with the laws of the State/Commonwealth of Nevada.
4. Both parties represent they fully understand their right to review all aspects of this Release with attorneys of their choice, that they have had the opportunity to consult with attorneys of their choice, that they have carefully read and fully understand all the provisions of this Release and that they are freely, knowingly and voluntarily entering into this Release.
This is a legal agreement between the Program Participant (either as an individual or as an authorized representative) and Beta Farm USA, Inc. (“Beta Farm”). By ordering a product sample (“Sample”) from this site or subsequently using a Sample, the Program Participant agrees to all of the terms of this Agreement.
1. Support Beta Farm is NOT obligated to provide any support. The Program Participant may contact Beta Farm and report problems and provide suggestions regarding the Sample. Beta Farm has no obligation whatsoever to respond in any way to such a problem report or suggestion. Beta Farm may make changes to the Sample at any time, without any obligation to notify or provide updated versions of the Sample to the Program Participant.
2. No Warranty To the maximum extent permitted by law, beta farm inc expressly disclaims any warranty for the sample. The sample is provided “as is”, without warranty of any kind, either express or implied, including, without limitation, the implied warranties of fitness for a particular purpose. The Program Participant assumes the entire risk arising out of the use, performance, or non performance of the sample, nothing in this agreement may be construed as a warranty or
3. Indemnity The Program Participant agrees to fully defend and indemnifyBeta Farm Inc from any and all claims, liabilities, and costs (including reasonable attorney’s fees) related to (1) the Program Participant uses of the Sample or (2) the Program Participant’s violation of the terms and conditions of this Agreement.
4. Resale Prohibited The Program Participant must not resell Samples, through brokers, exporters, or otherwise, If the Program Participant breaches the terms of this section, in addition to Beta Farm Inc cancellation rights, the Program Participant agrees to fully indemnify Beta Farm Inc, its officers, employees and distributors, from any and all liability related to such resale, including attorneys’ fees and costs.
5. Disclaimer for Critical Applications Sample is not intended or authorized for use in a product surgically implanted into the body, for a life support product or for other products for which a Sample failure could cause personal injury or death. If the Program Participant uses or permit the use of Samples for such unintended or unauthorized uses, the Program Participant agrees to fully indemnify Beta Farm and its affiliates, and the officers, employees and distributors of each, from all liability related to such use, including attorneys’ fees and costs.
6. Limitation of Liability In no event will Beta Farm be liable, whether in contract, tort, or otherwise, for any incidental, special, indirect, consequential or punitive damages, including, but not limited to, damages for any loss of use, loss of time, inconvenience, commercial loss, or lost profits, savings, or revenues to the full extent such may be disclaimed by law.
7. Compliance with Laws The Program Participant must use the Sample in accordance with all applicable laws, regulations and statutes. The Program Participant agrees they do not intend to nor will, directly or indirectly, export or transmit the Sample to any country in violation of export restrictions.
8. Choice of Law; Venue; Limitations The Program Participant agrees that the statutes and laws of the United States and the State of Nevada, USA, without regard to conflicts of laws principles, will apply to all matters relating to this Agreement or the Sample, and the Program Participant agrees that any litigation will be subject to the exclusive jurisdiction of the state or federal courts in Nevada, USA. The Program Participant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or the Sample must be filed within one (1) year after such claim or cause of action arose or be forever barred.
9. Sample Labeling The Program Participant is not authorized to use any Beta Farm trademarks, brand names, or logos.
10. Entire Agreement This Agreement constitutes the entire agreement between the Program Participant and Beta Farm regarding the subject matter of this Agreement, and supersedes all prior communications, negotiations, understandings, agreements or representations, either written or oral, if any. This Agreement may only be amended in written form, executed by the Program Participant and Beta Farm.
11. Severability If any provision of this Agreement is held for any reason to be invalid or unenforceable, then the remaining provisions of this Agreement will be unimpaired and, unless a modification or replacement of the invalid or unenforceable provision is further held to deprive the Program Participant or Beta Farm of a material benefit, in which case the Agreement will immediately terminate, the invalid or unenforceable provision will be replaced with a provision that is valid and enforceable and that comes closest to the intention underlying the invalid or unenforceable provision.
12. Disclaimer of Warranty Beta Farm does not warrant or make any representations regarding the availability, use, timeliness, security, validity, accuracy, or reliability of, or the results of the use of, or otherwise respecting, the content of the site or any other web sites linked to or from the site. Any material downloaded or otherwise obtained through the use of the site is done at the Program Participant’s own discretion and risk and the Program Participant is solely responsible for any damage to the Program Participant’s computer system or loss of data that results from the download of any such material, or use of this site. The content of the site is provided “As is” and on an “As available” basis, without warranties of any kind either express or implied. To the fullest extent possible pursuant to applicable law, Beta Farm disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or other violation of rights. Some jurisdictions do not allow the exclusions or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply. No advice or information, whether oral or written, obtained by the Program Participant from Beta Farm will be deemed to alter this disclaimer of warranty, or to create any warranty.
13. No Waiver The waiver by Beta Farm of any breach of any provision of this Agreement will not operate or be construed as a waiver of any other or a subsequent breach of the same or a different provision.
F. DISPUTES WITH COMPANY
1. Governing Law; Jurisdiction This Agreement and all aspects of the Website and Company Services shall be governed by and construed in accordance with the internal laws of the State of Nevada, without regard to conflict of law provisions. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), the Program Participant agrees not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Douglas county County, State of Nevada, and the Program Participant hereby consents to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by the Program Participant related in any way to the Website or Company Services be instituted more than two (2) years after the cause of action arose.
2. Informal Resolution To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), the Program Participant and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 180 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other.
3. Binding Arbitration If the Program Participant and Company are unable to resolve a Dispute through informal negotiations, either the Program Participant or Company may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The Program Participant UNDERSTANDS THAT ABSENT THIS PROVISION, The Program Participant WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. The Program Participant’s arbitration fees and the Program Participant’s share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Company will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Douglas county County, State of Nevada. Except as otherwise provided in this Agreement, the Program Participant and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
4. Restrictions. The Program Participant and Company agree that any arbitration shall be limited to the Dispute between Company and the Program Participant individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
5. Exceptions to Informal Negotiations and Arbitration The Program Participant and Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of any of the Program Participant’s or Company’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. If this Section is found to be illegal or unenforceable then neither the Program Participant nor Company will elect to arbitrate any Dispute falling within that portion of this Section found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Program Participant and Company agree to submit to the personal jurisdiction of that court.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the first date written above.