This terms and conditions of sale are for clients located in North, Central and South America, if you are not based on those regions please check our terms and conditions for EUROPE and the REST OF THE WORLD here.
These Terms and Conditions of Sale (hereinafter the “Terms”) govern our sale and your purchase of the microbiological analysis services (hereinafter, the “Services”) offered on the website stores.biomemakers.com (hereinafter, the “Website”), owned by BIOME MAKERS INC., a Delaware corporation, and its subsidiaries (hereinafter, “we” or “BIOME MAKERS”).
The purchase of one or various Services entails the full and unreserved acceptance of all and each one of the Terms indicated herein, without prejudice to the acceptance of all the specific conditions that could be applied when specifically purchasing certain Services, as further explained below. There may also be additional supplementary conditions (the “Supplementary Terms”) that aren’t set out below, but that may apply to certain orders, and should be reviewed prior to completing the corresponding transaction.
You will find any Supplementary Terms that apply to your purchase of the Services (or to the Services themselves) in our quotation to you (for example, when you purchase more than a certain quantity of Services), on the Website, in the Portal (as defined below) or in communication emails and literature that accompany the Services, including but not limited to, instructions and use guidelines. You can also obtain copies of such Supplementary Terms by contacting BIOME MAKERS’ support service center at support@biomemakers.com.
These Terms may be amended by BIOME MAKERS from time to time without prior notification. Therefore, we strongly recommend that you carefully read through their content each time before acquiring any Services. It is your responsibility to check the Website and these Terms periodically for changes. You agree that your continued use of, and purchase of Services through, the Website following the posting of any changes constitutes acceptance of those changes. By accessing or using any part of the Website, you agree to be bound by these Terms. If you do not agree to all the Terms, then you may not access the Website to acquire any of the Services. These Terms, our quotation, if any, and the Supplementary Terms, if any, comprise the agreement (“Agreement”) between you (“you”, “Client”, or “Customer”) and BIOME MAKERS. Unless your order is subject to a separate valid and written, executed agreement between you and BIOME MAKERS or any of BIOME MAKERS’ group companies, in which case such agreement applies, you agree to accept and be bound by the Agreement by placing an order for Services on the Website, or if you receive ordering or sales documents that reference these Terms. This Agreement is the complete and exclusive contract between you and BIOME MAKERS with respect to your purchase of the Services through the Website. This Agreement constitutes a legally binding agreement made between you and BIOME MAKERS.
We expressly reject any different terms or provisions contained in any document you may provide that has not been previously approved in writing by BIOME MAKERS in lieu of the Terms, and if the terms and conditions in this Agreement differ from the terms of your offer, this Agreement will serve as the governing terms for our contract.
The Agreement between us is created when you receive an email confirmation from BIOME MAKERS to the email address provided by you at the time of placing an order for Services, stating that your order for Services has successfully been placed, and that we have accepted it.
BIOME MAKERS hereby informs you that its company name is BIOME MAKERS INC., a corporation incorporated under the laws of the State of Delaware, with its principal address located at 202 Cousteau Pl, Suite 100, Davis, California 95618, United States.
You may contact BIOME MAKERS using any of the following channels:
Any notice or communication required or permitted under these Terms must be made in writing and will be deemed received when personally delivered, or three (3) business days after being sent by certified mail, postage prepaid, to a party’s specified address.
The Services offered, along with their main characteristics and current pricing, among others, can be found on the Website.
BIOME MAKERS reserves the right to decide, at any moment, which Services it offers for purchase on the Website. BIOME MAKERS may at any time add additional o complementary products and/or services to those currently offered. BIOME MAKERS also reserves the right to remove or stop offering, at any time, temporarily or permanently, and without prior notice, any of the offered Services.
To purchase one or more of the various Services on the Website, the Client must follow the instructions indicated therein throughout the entire purchasing process, along with the reading and acceptance of any and all general and specific conditions. For more information about the purchase process, please see Section 5 herein.
Client agrees that BIOME MAKERS is not liable for any damages that Client may suffer as a result of any failure or disconnection in the telecommunication networks which could lead to the suspension, cancellation or interruption of the service of the Website. BIOME MAKERS is not liable for any direct or indirect damages to you or anyone else arising out of your use of the Website.
BIOME MAKERS does not guarantee, represent, or warrant that use of the Website will be uninterrupted, timely, secure, or error-free. You expressly agree that your use of, or inability to use, the Website is at your sole risk. In no case shall BIOME MAKERS or any of its subsidiaries or group companies, or their respective shareholders, owners, directors, officers, employees, affiliates, agents, contractors, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of the Website, the Services or any of the products that comprise part of the Services or which are procured using the same, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of your use of the Website or any content posted, transmitted, or otherwise made available via the Website, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
In order to make a purchase on the Website all Clients (or their authorized representatives using the Website) must be over 18 years old.
In order to place an order for Services, the process is as follows:
The data provided by the Client will in all cases will be deemed true, accurate and complete, and the Client expressly consents to the treatment of such information in accordance with the privacy policy of BIOME MAKERS (https://stores.biomemakers.com/privacy-policy/). By using the Website or the Portal, you agree to be bound by our Privacy Policy, which is incorporated into these Terms. Please be advised the Website is hosted in the United States. If you access the Website from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Website, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.
It will be the Client’s responsibility to set its credentials on the Portal, which will enable the Client’s access to additional services and/or tools offered. You agree to keep your passwords confidential and will be responsible for all use of your accounts and passwords. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
By using the Website and the Portal, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Website and the Portal through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Website and the Portal for any illegal or unauthorized purpose; and (7) your use of the Website and the Portal will not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Website and/or the Portal (or any portion thereof).
The steps and requirements to be followed to purchase Services are detailed clearly and simply on the Website. Additionally, the Client may receive e-mails from BIOME MAKERS providing further details on the purchase process, instructions for the correct use of the Services and/or any required or recommended steps post-purchase.
It is recommended that Client prints and/or keeps a copy on a durable medium of this Agreement when the order is placed, as well as the corresponding Services’ invoice generated and sent to the Client by BIOME MAKERS, once an order for Services has been accepted.
The invoice corresponding to your purchase of Services will be sent by BIOME MAKERS by electronic mail to the address provided by Client at the time of placing the order (or to any other appropriate e-mail, if Client subsequently notifies BIOME MAKERS in writing of a change in the contact e-mail), within seven (7) business days following Client’s receipt of a confirmation e-mail stating that your order has been accepted.
Unless we have agreed otherwise in writing, payment must be made upon placing the order for the Services through the Website. Each order is a separate transaction, and you may not off-set payments, including from one order against another. We reserve the right to require you to provide any security to our satisfaction, if we believe in good faith that your financial condition does not justify the payments terms otherwise specified. You will make all payments in the currency specified when placing the order for the Services on the Website.
We reserve the right to cancel the Services or stop delivery of any of the products that comprise the Services in transit and withhold shipments in whole or in part if any payment made upon placing the order for the Services is rejected, or if BIOME MAKERS encounters any type of problem relating to such method of payment, or if you otherwise do not comply with any of your obligations in this Agreement.
Clerical errors or omissions, whether in computation or otherwise in any order, quote, invoice or other documentation or correspondence, are subject to correction by BIOME MAKERS.
The duration of the Agreement with respect to the specific Services acquired as part of your order will begin on the date the confirmation e-mail relating to such order is received by you and will terminate upon delivery to the Client of the final results of the analysis undertaken by BIOME MAKERS as part of the Services, which results shall be accessible by the Client through the Portal. Client understands that the Services may be available only for a definite period of time since the purchase is made. By way of example, for a BeCrop test, the Client will have a 6-month period from the moment BIOME MAKERS sends the corresponding order confirmation e-mail to take a sample and send it back to BIOME MAKERS, to be analyzed under the scope of the Services. Such limitations, if any, are also clearly stated on the email sent to the Client instructing Client on how to take the corresponding samples for the adequate provision of the Services and how to use the Service Kit.
Notwithstanding the foregoing, certain Sections of this Agreement will, by their nature, survive its termination, including, but not limited to, your confidentiality and intellectual property and indemnification obligations, as well as the limitation of our liability hereunder.
Following receipt of the order confirmation e-mail sent to the Client, BIOME MAKERS will send a kit to the Client corresponding to the Services acquired (the “Service Kit”). The Service Kit will include the number of sample tubes required for BIOME MAKERS to adequately conduct the analysis required as part of the contracted Services, and the Service Kit’s sampling instructions. The Service Kit will be delivered to the physical address provided by Client at the time of placing the order. Any changes to the Client’s delivery address for the Service Kit must be made no later than two (2) days after receiving the confirmation email for the order of Services from BIOME MAKERS. These changes must be informed by the Client to BIOME MAKERS through a written communication through any of the channels set forth in Section 2 herein. The analysis of the samples that comprises part of the Services will commence the moment BIOME MAKERS receives the samples back from the Client (subject to the limitations set forth in Section 7 herein).
The prices of the Services (which are in USD$) are listed on the Website, with their characteristics, offers, and discounts.
Except as set forth herein, prices do not include any taxes (including goods and services tax, sales tax, use tax, value added tax, customs duties and tariffs), duties, levies or other government fees that may apply to your order. If applicable, it will be the Client’s responsibility to pay such taxes. If for any reason, the taxes applicable to the purchase of Services on any order are paid by BIOME MAKERS, the corresponding cost will be added to the Client’s invoice. Any tax exemption claimed by the Client, must be accompanied by a valid, signed certificate or letter of exemption for the respective jurisdiction which has issued it.
The prices of the Services may vary at any given time, without notice, provided that BIOME MAKERS will not change the price of any Services applicable to an order that is in progress (i.e., pending analysis of the samples and/or delivery of the applicable results) without the Client’s prior written approval. The applicable price shall be the price displayed on the Website at the time you place your order. The final cost for the order, including any applicable taxes, will be informed to the Client through the online purchasing process on the Website, before the Client’s acceptance is confirmed, and prior to checkout and payment.
Subject to paragraph b. above, the costs of shipping the Service Kit to the Client are included in the Service price posted on the Website.
The costs associated with the shipping and return to BIOME MAKERS of the samples taken by the Client, using the Service Kit supplied by BIOME MAKERS, will be borne exclusively by the Client and shall be the Client’s sole responsibility to ensure that all samples are received by BIOME MAKERS free of any harm or defect. Our Service prices do not include such shipping and transportation charges unless expressly stated otherwise.
Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a Service Kit to you is delayed due to any cause within your control, we may place the products in storage at your risk and expense, or simply cancel the order without any further liability to BIOME MAKERS. Risk of loss of the Service Kit will pass to you when we load them onto the commercial carrier at our facility.
Immediate payment for the Services shall be made by you through the safe payment gateway SSL provided on the Website (currently Stripe for purchases made from North, Central and South America and WooCommerce Payments (Stripe) for purchases made from the rest of the world (the “Payment Platforms”). BIOME MAKERS may change its payment gateway SSL at any time. You agree and acknowledge that the terms and conditions and privacy policies of the Payment Platforms will apply to your payment for the Services. Before making a payment such terms and conditions must be reviewed and accepted by the Client. You agree and acknowledge that the Payment Platforms are independent from BIOME MAKERS in all respects and that, as such, BIOME MAKERS is not liable for any claim that you may have an that relates to your use of the Payment Platforms. If a refund is required for any reason, or in case of a cancellation of an order, the amount will be reimbursed to the same payment card.
All payments by Clients must be made in the currency specified upon checkout when placing the order for the Services.
It is the Client’s sole responsibility to review and accept the Payment Platforms’ specific terms and conditions. BIOME MAKERS does make any representations or warranties, in whole or in part, with any of the terms therein contained, and any such relationship regarding them is exclusively between the Client, and the Payment Platforms.
Orders that have been placed through the Website cannot be cancelled or changed without our written consent. If BIOME MAKERS accepts the cancellation of an order in writing, BIOME MAKERS will proceed to refund the amount already paid by the Client within a term of thirty (30) calendar days following the effective date of the cancellation.
Customer’s decision to obtain any Service from BIOME MAKERS is made entirely in reliance on Customer’s own skill and judgment and not in reliance on any conduct, statement, representation or warranty (written or oral) made by or on behalf of BIOME MAKERS or its employees, officers, agents or representatives unless set out in these Terms. Customer is solely responsible for determining whether any Service will satisfy its requirements or will be suitable or fit for Customer’s specific purpose.
BIOME MAKERS’ warranties extend only to you, the Client and original purchaser, and you cannot transfer them. Our obligation to repair or replace any product that comprises the Service Kit is your sole remedy. Except as otherwise stated, we disclaim all other warranties, whether express or implied, oral or written, with respect to the Services, including without limitation all implied warranties (a) of merchantability; (b) of fitness for any particular purpose; and/ or (c) that the products are error-free or will accomplish any particular result.
To the maximum extent permitted by applicable law, BIOME MAKERS will not be liable under any legal theory (including but not limited to contract, negligence, strict liability in tort or warranty of any kind) for any indirect, special, incidental, punitive, multiple, exemplary or consequential damages (including but not limited to all costs of cover, lost profits, lost data, loss of business, loss of goodwill or loss of revenue) that you might incur under the agreement, or that may arise from or in connections with our products or Services, even if BIOME MAKERS had notice of the possibility of such damages.
In addition, our maximum aggregate liability arising out of or in connection with the Agreement or any of the Services, is limited to 100% of the amount you paid to us for the specific Services purchased and that gave rise to the liability.
The provisions in this Section 12 do not limit BIOME MAKERS’ liability that cannot be limited by law, including but not limited to liability for fraud and death or personal injury caused by gross negligence.
We do not support or make any warranties about products manufactured or supplied by third parties, if any, that you purchase through the Website. When you buy a third- party product, we will let you know that this purchase is governed by the third-party’s own contract terms. You must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims. We agree, however, to assign to you any warranty rights we may receive from the original manufacturer or third-party supplier to the extent the original manufacturer or third-party supplier allows.
Client acknowledges that the Service Kit and any other product that comprises the Services must be used in accordance with the instructions set forth in the Website, the Portal, and the Service Kit materials and literature, and any other instructions provided by BIOME MAKERS from time to time. It is the client’s sole responsibility to ensure the adequate use is given to the Service Kit and the products that comprise parts of the Services. Any samples received by BIOME MAKERS from the Client as part of the Services are taken “AS IS” and assumed to be what the Client states they are. If BIOME MAKERS receives any sample that does not meet the requirements for the provision of the Services (by way of example, if a Client sends a substance other than soil, which is the only type of sample that can be analyzed as part of the Services), Client shall not be entitled to any type of refund whatsoever, and BIOME MAKERS is authorized to discard and destroy the sample without any further liability to BIOME MAKERS.
Any questions or doubts regarding the proper use of the Service Kit or any other products that comprise any part of the Services, or the specific substances that can be analyzed as part of the Services must be submitted through the support sections of the Portal; https://portal.becrop.com/support or via e-mail to support@biomemakers.com. Client hereby expressly acknowledges that all claims and/or refunds derived from a misuse of the Service Kit or any of the products that comprise a part of the Services are waived.
In order to file a complaint or claim before BIOME MAKERS, the Client must send an e-mail to support@biomemakers.com, or a letter to the postal address set forth in Section 2.
For California Users and Residents
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
Unless otherwise indicated, the Website, the Portal, its content, and the Services offered therein (including the Service Kit) are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Website or the Portal, and on any item or product delivered as part of the Services (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by BIOME MAKERS or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions.
The Content and the Marks are provided are “AS IS” for your information and personal use only. Except as expressly provided in these Terms, no part of the Website or the Portal and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without BIOME MAKERS’ express prior written permission.
Provided that you are eligible to use the Website or the Portal, you are granted a limited license to access and use the Website and the Portal and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Website, the Portal, the Content and the Marks.
As between you and BIOME MAKERS, we exclusively own all intellectual property rights relating to our Services and the products that comprise any part of them, as well as all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for us, or jointly by you and us, in relation to processes, designs and methods utilized in rendering our Services. You agree to transfer and assign to us all your right, title, and interest in and to any joint intellectual property. At our request and at our expense, you will help us secure and record our rights in such intellectual property. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell our Services or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
Customer shall not, without BIOME MAKERS’s prior written consent, use, duplicate, or disclose any technical data or any information directly concerning the Services that is disclosed by BIOME MAKERS to Customer, for any purposes other than for the use, operation or maintenance of the Services purchased hereunder.
If any third-party makes a claim against BIOME MAKERS for infringement of its intellectual property rights or otherwise based on (a) your failure to comply with the Agreement, or (b) your modification, use or resale of the Services or a product that comprises the Services (including the Service Kit) purchased from us, then you will indemnify and hold BIOME MAKERS and its affiliates harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that we may have to pay as a result of the claim.
You acknowledge that each product and any related software and technology that relates to the Services, including technical information that we may supply you, including those contained in product documents (collectively “Items”), are subject to U.S., and local government export controls.
The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries.
You must comply with the EAR, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. You must not, directly or indirectly, without first obtaining the required license to do so from the appropriate U.S. government agency; (a) export, re-export, distribute or supply any Item to (a) any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government; (b) any person or entity who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. You will, if we request, provide information on the end user and end use of any Item you export or plan to export.
You will cooperate fully with us in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold us harmless from, or in connection with, your or your consultants’, agents’ or employees’ violation of this Section 16.
The Agreement shall be governed by the laws of the state of Delaware.
If BIOME MAKERS and the Client (collectively hereinafter referred to as the “Parties”) are unable to resolve a dispute through informal negotiations for a period of at least thirty (30) days, the dispute (except those disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU 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. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online, by one single arbitrator. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Client or BIOME MAKERS. The arbitration will take place in Sacramento, California. If for any reason, a dispute proceeds in court rather than arbitration, the dispute shall be commenced or prosecuted in the state and federal courts located in the city of Sacramento, California, and the Parties hereby consent 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. In the event of any legal proceeding between you and us relating to the Agreement, neither party may claim the right to a trial by jury. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms.
The Parties agree that any arbitration shall be limited to the dispute between BIOME MAKERS and Client individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) 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.
BIOME MAKERS and Client agree that the following disputes are not subject to the above provisions concerning binding arbitration: (a) any disputes seeking to enforce or protect, or concerning the validity of, any of the confidential information or intellectual property rights of BIOME MAKERS; (b) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither BIOME MAKERS or Client will elect to arbitrate any dispute falling within that portion of this provision 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 both BIOME MAKERS and Client agree to submit to the personal jurisdiction of that court.
Visiting the Website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Website, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
