Terms & Conditions
1. General Terms. These Terms & Conditions are applicable to and binding on all offers and agreements between Beyond Meat, Inc. and the Customer as identified on the applicable Price Deviation Agreement (“PD Agreement”), and all services and deliverables to be performed by either party as may be further described in the applicable PD Agreement between the parties. These Terms & Conditions, together with each applicable PD Agreement, shall mean this “Agreement”. These Terms & Conditions also apply to all future relevant PD Agreements between the parties, even if not expressly agreed upon, unless otherwise agreed by the parties in writing. Each PD Agreement, together with these Terms & Conditions, constitutes the sole and entire agreement of the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of this Agreement. Beyond Meat reserves the right to update and make changes to these Terms & Conditions at any time in its sole discretion without notice. Any update and/or changes made will take effect immediately upon posting. The last revised date of the current Terms & Conditions will be posted at the top of this page. By continuing to place orders with Beyond Meat you are acknowledging you have agreed to such changes.
2. Product Supply. Customer desires to purchase, and Beyond Meat agrees to supply, certain products identified in the applicable PD Agreement (the “Products”) under the terms and conditions described herein for sale by Customer. Customer will purchase all Products solely through Beyond Meat’s authorized distributor(s) or directly from Beyond Meat.
3. Pricing; Rebates; Performance Requirements. Pricing, rebates (if any), and Performance Requirements (if any), will be as set forth in the applicable PD Agreement and shall be subject to Customer’s full compliance with the terms and conditions of this Agreement.
4. Orders.
a. Orders. Customer agrees that all Products ordered will be in such minimum quantities specified for each Product on the applicable PD Agreement.
b. Orders Directly From Beyond Meat. For orders placed by Customer directly with Beyond Meat, Customer agrees that such order shall be in writing on a purchase order form either provided or approved by Beyond Meat. Purchase orders must be placed with ten (10) business day minimum lead times. Beyond Meat will accept or reject each purchase order within five (5) business days of receipt thereof for the quantities and delivery dates of Customer’s requirements for Products as set forth in the purchase order. Cancellation of accepted purchase orders is within the sole discretion of Beyond Meat. Beyond Meat will only consider accepted purchase order cancellation requests if provided with 30 days’ prior written notice.
i. Purchase Order Acceptance. Beyond Meat’s acceptance of any purchase order is strictly limited to acceptance of the relevant Product order information within the purchase order. Any terms contained in a purchase order or other document submitted by Customer with an order of product which contains terms or conditions conflicting with the terms and conditions of this Agreement are hereby rejected and the terms and conditions of this Agreement shall prevail unless otherwise expressly agreed to in writing by the parties. Beyond Meat shall have no obligation to expressly reject or otherwise communicate rejection of such other terms and conditions and Beyond Meat’s failure to object to terms and conditions contained in any such purchase order or other document shall not be construed as a waiver of the terms of this Agreement nor an acceptance of any such terms and conditions.
ii. Responsibility; Risk of Loss. Responsibility and risk of damage or loss to Products (including duties and insurance) will remain with Beyond Meat until the Products are received by Customer or a facility or consignee designated by Customer in accordance with the terms and conditions of this Agreement, at which point such storage will become Customer’s responsibility. Any stated delivery dates are approximate. Beyond Meat will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date.
iii. No Returns. Customer acknowledges and agrees that no right of returns exists for any Products which have been delivered in accordance with the terms of this Agreement, including in relation to any unsold or expired Product.
iv. Security Interest. Customer hereby grants Beyond Meat a security interest in the Products sold to Customer under this agreement and any proceeds therefrom (including accounts receivable), until payment in full for the Products has been received by Beyond Meat. Customer shall execute and deliver any document reasonably requested by Beyond Meat to perfect this security interest.
5. Trademarks.
a. Beyond Meat agrees to allow the Customer to use, on a limited, revocable, non-exclusive basis, the Beyond Meat trademarks and/or logos (collectively the “Beyond Marks”) solely to the extent necessary for Customer to promote the Products. Customer must comply with Beyond Meat’s policies and direction describing the manner in which the Beyond Marks may be used. Without expanding upon the foregoing limited license, Customer may: (i) use the Beyond Marks only in a manner that maintains and enhances the goodwill associated with the Beyond Marks, (ii) not use any of the Beyond Marks in a manner that degrades, diminishes, or detracts from the goodwill of the business associated with the Beyond Marks, and (iii) not use the Beyond Marks in a manner which is scandalous, immoral, or satirical. If Beyond Meat requests, Customer will promptly change the manner of use of the Beyond Marks. Any rights or purported rights in any of the Beyond Marks acquired through Customer’s use belong solely to Beyond Meat. Customer will not use any, copyright, word mark, design mark, service mark, trademark, trade dress, logo, or name which are, or any part of which are, confusingly similar to the Beyond Marks. This Agreement does not give Customer any right, title or interest in the word “Beyond” (either alone or in association with other words or names) or in the corporate name of Beyond Meat, its affiliates, or any part thereof, or in any other mark adopted by Beyond Meat or any of its affiliates, or any copyright or good will of Beyond Meat or of any of its affiliates. Customer shall not contest or dispute, directly or indirectly, Beyond Meat’s or its affiliates’ proprietary interest in, or ownership of, the Beyond Marks. Beyond Meat may terminate Customer’s permission to use the Beyond Marks at any time upon notice; provided that any permission to use the Beyond Marks will terminate when this Agreement terminates. Upon termination of this Agreement, Customer will immediately discontinue its use of the Beyond Marks.
b. Beyond Meat, its affiliates, and their respective agents and contractors shall have the non-exclusive right to use Customer’s name, trademarks, trade names, service marks, commercial announcements (slogans), related insignia (logos) and copyrights (the “Customer Marks”) for the purpose of advertising and promoting the relationship of the parties. Beyond Meat will not use any of the Customer Marks in a manner that degrades, diminishes, or detracts from the goodwill of the business associated with the Customer Marks. Beyond Meat will not use the Customer Marks in a manner which is scandalous, immoral, or satirical. If Customer requests, Beyond Meat will promptly change the manner of use of the Customer Marks. All rights to use the Customer Marks shall cease upon the expiration or termination of this Agreement. Beyond Meat agrees not to contest or dispute, directly or indirectly, Customer’s proprietary interest in, or ownership of, the Customer Marks.
7. Confidentiality.
a. Confidential Information. “Confidential Information” means this Agreement and all confidential or otherwise proprietary business and technical information relating to the parties and their respective businesses, including, without limitation, ideas, know-how, trade secrets, production, manufacturing and sales techniques, financial statements and data, recipes and formulas, sources of supply, advertising, actual and prospective customers, pricing, costing, accounting procedures, and any other information of relating to a party, not generally known or available outside that party or entrusted to that party in confidence by third parties, and which would, under the circumstances, appear to a reasonable person to be confidential or proprietary, whether or not marked, designated or otherwise identified as “confidential”, “proprietary”, or something similar.
b. Access to and Use of Confidential Information. Each party as a recipient of Confidential Information (“Recipient”) agrees (i) that it will treat such Confidential Information as a trade secret of the disclosing party (“Discloser”), (ii) not to disclose or use any of such Confidential Information for any purpose except as necessary and consistent with the terms of this Agreement, (iii) to limit the use of and access to such Confidential Information to such employees and agents who have a need to know such Confidential Information, and (iv) that it will promptly notify the other party in writing of any unauthorized disclosures and/or use thereof.
c. Exclusions. Each party as Recipient will have no obligation to keep confidential information that (a) is known through no improper means to Recipient at the time of disclosure, (b) is independently developed by Recipient (provided Recipient can show that such development was accomplished by or for Recipient without the use of or any reference to Confidential Information), (c) becomes rightfully known to Recipient from another source without restriction on subsequent disclosure or use, (d) is or becomes part of the public domain through no wrongful act of Recipient, or (e) is furnished by Discloser to a third party without a similar confidentiality restriction. Recipient may disclose Confidential Information pursuant to any authorized judicial or governmental request, requirement or order, provided that Recipient takes reasonable steps to give Discloser sufficient notice to contest such request, requirement or order and/or seek a protective order therefor. Any such disclosure by Recipient of the Confidential Information of Discloser, will, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.
d. Injunctive Relief. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that Discloser will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, threatened or actual.
e. Return of Confidential Information. In any event of termination or expiration of this Agreement, each party will promptly return to the other party all of such party’s Confidential Information in its possession or control or destroy such Confidential Information and certify as to such destruction in writing provided, however, that the party returning such Confidential Information may keep one (1) copy of such Information in its legal archives for the sole purpose of ensuring compliance with its ongoing obligations of confidentiality and non-use.
8. Term & Termination.
a. Term. The “Term” of this Agreement shall be as set forth in the applicable PD Agreement. This Agreement will begin on the Effective Date as set forth in the applicable PD Agreement and continue for the Term, unless earlier terminated pursuant to the terms of the Agreement (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and Renewal Terms are collectively referred to herein as the “Term”.
b. Termination for Cause. Either party may terminate this Agreement immediately:
i. If the other party fails to perform or meet any material term or condition hereof and has failed to correct same within thirty (30) days after written notice of such failure;
ii. If the other party ceases to do business as a going concern or ceases to conduct its operations in the normal course of business, becomes insolvent, a receiver is appointed to the possession of all or substantially all of such party’s property, the other party makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy, or the other party is the subject of an involuntary petition in bankruptcy and such involuntary petition is not dismissed within one hundred twenty (120) days of filing; or
c. Termination for Convenience. After the Initial Term, Beyond Meat may terminate this Agreement at any time upon thirty (30) day written notice to Customer.
d. Liquidated Damages. Customer hereby acknowledges that Beyond Meat has invested significant time and resources in connection with the incentives and benefits offered to Customer hereunder and would be substantially harmed if Client fails to perform or materially breaches any material term or condition hereunder. In the event Beyond Meat terminates this Agreement pursuant to Section 7.b.i. above, Customer shall be liable to Beyond Meat for liquidated damages equal to the estimated sales for the remainder of the Term as of the effective date of termination. The parties represent and agree that the liquidated damages provision contained in this Section 7 is fair and reasonable in light of the fact that the actual damages that would be suffered by Beyond Meat would be difficult to ascertain. If a dispute arises regarding breach of this provision, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs. Additionally, in the event of any termination of this Agreement during the Term for any reason other than uncured material breach by Beyond Meat, Beyond Meat shall be entitled to a pro-rated refund of any pre-paid funds, offers, or incentives calculated as of the effective date of termination.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, BEYOND MEAT SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY OTHER PARTY CLAIMING THROUGH CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES AND FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY AND INJURY TO THIRD PARTIES WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY IN RESPECT OF ANY GOODS OR SERVICES SUPPLIED UNDER THIS AGREEMENT, IN RESPECT OF ANY ACT OR OMISSION (NEGLIGENT OR OTHERWISE) ON THE PART OF BEYOND MEAT OR ITS AGENTS OR CONTRACTORS OR OTHERWISE OUT OF THE RELATIONSHIP CREATED BY THIS AGREEMENT, EVEN IF BEYOND MEAT HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR DAMAGES. IN NO EVENT WILL BEYOND MEAT’S CUMULATIVE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT (REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY) EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO BEYOND MEAT IN CONNECTION WITH THE PURCHASE ORDER GIVING RISE TO THE CLAIM.
10. Miscellaneous.
a. Relationship of Parties. Beyond Meat and Customer are independent contractors for the purpose of this Agreement. Neither the execution, delivery nor performance of this Agreement will be construed to constitute either party as an agent or representative of the other for any purpose.
b. Assignment. This Agreement will be binding upon and be for the benefit of the parties and their legal representatives, successors, and assigns. Neither party may assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld, except to its affiliate or in the event of merger or acquisition or for corporate reorganization or tax purposes or a sale of all or substantially all of its assets (which will not require consent). Any purported assignment in contravention of this Section is null and void.
c. Force Majeure. Neither party shall be liable for any delay or failure to fulfill any obligation under this Agreement (including without limitation for any damage, loss or expense of any nature that the other may suffer or incur) due to any occurrence beyond the reasonable control of either party, including without limitation, any due to acts of God, flood, extreme weather, fire, natural calamity, threat or act of terrorism, change in applicable law, action, inaction or delays in acting by, or regulations, laws or others of, any governmental entity or civil or military authority, power or utility failures, civil commotion, national emergencies, insurrection, riots, wars, pandemic, epidemic, or quarantine restrictions, or material shortages (each a “Force Majeure Event”).
d. Severability; Waiver. If any provision of this Agreement will be prohibited or unenforceable by any applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions. The temporary, limited, or specific waiver of any term, provision, or condition of this Agreement or a breach thereof will not be considered a waiver of any other term, provision, or condition, or of any subsequent breach of the same term, provision, or condition.
e. Dispute Resolution; Choice of Laws. This Agreement and its validity, construction and effect shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each of the parties hereto consents to the exclusive jurisdiction and venue of the courts of Los Angeles County, California for all purposes directly or indirectly related to this Agreement.
f. Notices. All notices, bills and payments will be made in writing and may be given (i) by personal delivery, (ii) by overnight courier requiring a signature for delivery, (iii) by certified or registered mail, return receipt requested, or (iv) by email delivery. Notices, bills and payments should be addressed to the addresses as set forth in the PD Agreement, and when so addressed will be deemed given five (5) days after deposit with overnight courier or in the U.S. mail, first class, postage prepaid, and postmarked. In all other instances, notices, bills, and payments will be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills, and payments are to be given by giving notice pursuant to this Section.
g. No Third-Party Beneficiary. This Agreement is entered into solely between Beyond Meat and Customer and will not be enforceable by any other third party nor be deemed to create any rights in any third party or obligations of a party to any third party.
h. Signatures. This Agreement may be signed in counterparts. An electronic transmission of a signature page will be considered an original signature page. At the request of a party, the other party will confirm an electronic signature page by delivering an original signature page to the requesting party.
i. Construction. Section headings are included for convenience but will not form a part of the Agreement or affect the interpretation of any part hereof. The word “including” is used in this Agreement in a non-exclusive sense and, unless otherwise expressly set forth, will be interpreted as being illustrative and not limiting.
j. Entire Agreement; Amendment. This Agreement embodies the entire understanding of the parties and will supersede all previous communications, representations or understandings either oral or written between the parties relating to the subject matter hereof. This Agreement may be amended only by a written document signed by the party against whom enforcement is sought.