Description of Sampling Services. Bulk Reserve provides a Platform for its users (“Users”) to locate and schedule hemp samplers like you to sample their hemp plants and products (“Samples”), and then submit those Samples to testing laboratories (“Labs”) for pre-harvest compliance testing or testing of attributes including, without limitation, potency, terpenes, pesticides, residual solvents, microbial contamination, heavy metals, mycotoxins, shelf stability, and water and soil conditions (the “User Services”). Without limiting the foregoing, the User Services may be offered on a one-time basis, through a monthly subscription or as otherwise described herein or on our website located at www.certifiedhemptesting.com (the “Website”). By signing up and being accepted as a sampler, you will be able to post your availability and pricing and designate Labs that you work with, and Users will be able to schedule a sampling appointment with you (the “Sampling Services”). You acknowledge and agree that you are responsible for performing the Sampling Services, and Bulk Reserve has no responsibility or liability with respect to those Sampling Services or for delivery of the Samples to the applicable Lab. Depending on the Lab chosen by the User, and if prearranged with Bulk Reserve, Bulk Reserve may agree to submit Samples to the applicable Lab and/or provide the results of the tests to the User. In the event that Bulk Reserve agrees to take such actions as part of the User Services, you acknowledge that it is doing so as a convenience to you, the applicable User and Lab, and Bulk Reserve is not responsible for the safety or quality of any Sample, the accuracy of any test result, or the delivery of any Sample to the Lab or of any test result to the User.
Access to and Use of the Scheduling Platform.
Subject to and conditioned on your acceptance by Bulk Reserve as a sampler (which acceptance may be granted or denied by Bulk Reserve in its sole discretion) and compliance with all of these Terms and Conditions, Bulk Reserve grants you a non-exclusive, non-transferable right to access and use the scheduling platform located on the Website (the “Platform”), solely for use by you and your employees in accordance with the terms and conditions herein. Such use is limited to your internal use. You are responsible for your employees’ and agents’ compliance with these Terms and Conditions.
You may not use the Platform for any purposes beyond the scope of the access granted in these Terms and Conditions. You may not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Platform or any related intellectual property or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or any related intellectual property or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, or any related intellectual property in whole or in part; (iv) remove any proprietary notices from the Platform or related intellectual property or documentation; or (v) use the Platform or related intellectual property or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Bulk Reserve reserves all rights not expressly granted to Sampler in these Terms and Conditions. Except for the limited rights and licenses expressly granted under these Terms and Conditions, nothing in these Terms and Conditions grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Platform, any related documentation, and any other intellectual property provided to you in connection with the foregoing (collectively, the “Bulk Reserve IP”). You acknowledge that, as between you and Bulk Reserve, Bulk Reserve owns all right, title, and interest, including all intellectual property rights, in and to the Bulk Reserve IP.
Eligibility. In order to provide Sampling Services and use the Platform, you must be located in the United States (unless otherwise approved by us in writing), and you must be and remain in compliance with all federal, state and local laws and regulations applicable to your performance of the Sampling Services. By signing up for and providing the Sampling Services, or by using the Platform you represent and warrant that you meet all the foregoing eligibility requirements. If you do not meet these requirements, you must not sign up for or provide Sampling Services or use the Platform. If these Terms and Conditions are being accepted by an individual on behalf of an entity, the individual accepting these Terms and Conditions represents and warrants that they are authorized to do so and to bind such entity.
Sampler Account. In order to sign up for and use the Platform or provide the Sampling Services, you may be required to create a user account (a “Sampler Account”) through our Website. You are responsible for keeping the password to your Sampler Account a secret. We are not responsible for your use of the Sampler Account, and by using the Sampler Account and/or the Platform, you take full responsibility for your actions relating to your use of the Sampler Account and the Platform, and your performance of the Sampling Services. You agree to notify us immediately if you suspect or learn of any unauthorized use of your Sampler Account. You also agree that while your employees may share your Sampler Account, you are responsible for their use of such Sampler Account. Additional terms related to your use of the Website are found on our Website.
Your Obligations. In order to sign up for and use the Platform and provide the Sampling Services, you must:
Sign up to provide Sampling Services on the Website or through other alternate means as specified by Bulk Reserve.
Comply with all applicable federal, state and local laws and regulations including, without limitation, those governing the sampling of hemp, the Samples themselves and the testing process. In addition, you represent and warrant that you are and will remain in compliance with all such laws and regulations.
Only provide Sampling Services for the testing of hemp, as defined under federal law.
Keep your schedule and pricing on the Platform up-to-date and complete any appointments that Users schedule with you through the Platform.
Make available to the Users copies of any of applicable policies and requirements you have, and comply with those policies and requirements. You acknowledge that Bulk Reserve is not responsible for providing Users with such policies and requirements or for ensuring compliance.
Cooperate with Bulk Reserve, the Users and the Labs as necessary and applicable.
Respond promptly to any request from Bulk Reserve, a User or a Lab to provide direction, information, approvals or authorizations.
Comply with all policies and requirements of the Labs you work with. By using the Platform, you acknowledge that it is your responsibility to ensure that you are aware of such policies and requirements.
Submit the Samples to the applicable User, Lab or Bulk Reserve and provide the applicable tracking number to the applicable User, Lab or Bulk Reserve, all as directed by the User, Lab or Bulk Reserve, as applicable.
Confirm that (i) each User is in compliance with all applicable laws and regulations regarding the growth and use of hemp, and the sampling process; and (ii) each Lab you work with is properly qualified and certified to perform the applicable testing. By using the PLATFORM or the Website, OR BY PROVIDING SAMPLING SERVICES, you acknowledge that we do not monitor for compliance by Samplers, USERS and Labs with applicable laws and regulations and that it is up to you to determine whether TO WORK WITH a USER or Lab. In addition, we do not guarantee that all Users and Labs are in compliance with all applicable certification and licensing requirements.
Ensure that the User has chosen a Lab that will work with you.
Ensure the safety of yourself, your employees and agents, and your personal property. Bulk Reserve is not responsible for any injury to you, your employees or agents, Users or any other third party, or for any damage to Real or personal property belonging to any of the foregoing.
Fees and Expenses; Payment Terms.
You will set your own prices on the Platform by acre, number of strains and/or other options that may be added to the Platform from time to time. You may change your pricing at any time by revising the pricing within the Platform; provided, however, you may not change the pricing for Sampling Services that have already been scheduled. You agree that you will not charge Users additional costs or fees other than what is displayed through the Platform. Users will pay Bulk Reserve directly for the Sampling Services using the fees that you set within the Platform (the “Sampling Fees”).
In consideration of your use of the Platform and the rights granted to you under these Terms and Conditions, Bulk Reserve shall retain a portion of all Sampling Fees its collects for Sampling Services you perform. Bulk Reserve shall pay you ninety percent (90%) of all Sampling Fees paid to Bulk Reserve for Sampling Services provided by you less (i) discounts, chargebacks and refunds, (ii) sales, use, value-added or other taxes required to be withheld and paid by Bulk Reserve; and (iii) any amounts Bulk Reserve pays or refunds to Users as a result of your actions or omissions (including, without limitation, cancelling an appointment for Sampling Services) (the “Sampler Payment”). You are not entitled to any Sampler Payment for cancelled appointments for Sampling Services regardless of the reason for termination.
Bulk Reserve will pay you the total Sampler Payment you earned in a given period of time in accordance with its then-current payment terms. Bulk Reserve currently pays the Sampler Payment on a weekly basis by check or electronic transfer but reserves the right to change this at any time. Bulk Reserve may collect other fees and amounts from Users, Labs and other samplers (including, without limitation, for the Sampling Services you perform) and you acknowledge that you have no right to receive any portion of such fees and amounts.
You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts earned by you hereunder; provided, that, in no event shall you pay or be responsible for any taxes imposed on, or with respect to, Bulk Reserve’s income, revenues, gross receipts, personnel or real or personal property or other assets.
We use a third-party service provider for credit card payment processing and related services (a “Payment Processor”). The identity of the Payment Processor may change from time to time. We are not responsible for any loss of funds related to the use of the Payment Processor, or for any actions or omissions of the Payment Processor.
BULK RESERVE makes no representations or warranties, express, implied, statutory, or otherwise, and BULK RESERVE cannot and does not guarantEE any result or the effectiveness of the PLATform, WEBSITE, USER Services or SamplING Services. Any Services, PRODUCTS OR OFFERINGS PROVIDED or licensed TO YOU BY BULK RESERVE are provided “as is,” and any implied warranty, including without limitation any implied warranty of merchantability, fitness for a particular purpose Or non-infringement is expressly disclaimed.
Any third-party services, technology, data, content and other materials provided in connection with the PLATFORM, the WEBSITE or the provision of Sampling Services (the “Third Party Services”), including, without limitation, the services provided by Labs, will be subject to the terms of Bulk Reserve’s and/or your agreement with such third party provider, and Bulk Reserve shall have no liability with respect to the Third Party Services (including, without limitation, the compliance by USERS and Labs with applicable Laws and Regulations, and the accuracy, quality, integrity, legality, reliability or ownership of the USERS, Labs, samples or test results), or with respect to your agreement with any such third party provider.
Confidential Information. All non-public, confidential, or proprietary information of Bulk Reserve, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, User information, Sampler and Lab information, customer lists, pricing, discounts, or rebates, disclosed by Bulk Reserve to the Sampler, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use in connection with this Agreement and may not be disclosed or copied unless authorized by Bulk Reserve in writing. Upon Bulk Reserve’s request, the Sampler will promptly return all documents and other materials received from Bulk Reserve. Bulk Reserve will be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Sampler at the time of disclosure; or (c) rightfully obtained by the Sampler on a non-confidential basis from a third party.
Termination; Effect of Termination.
These Terms and Conditions become effective immediately upon your acceptance of them, and shall apply to all of your uses of the Platform and your provision of Sampling Services.
You may cease providing Sampling Services at any time upon written notice to Bulk Reserve, subject to Section 10(d) below. In addition, we may terminate your access to the Platform or your ability to provide Sampling Services at any time upon notice to you or terminating your access to the Platform. In the event that we terminate your access to the Platform, you may not sign up for a new Sampler Account.
Bulk Reserve is not responsible for any cancellation or rescheduling by Users or Labs.
Upon expiration or termination of your right to use the Platform or provide Sampling Services through Bulk Reserve, your agreement to provide Sampling Services or these Terms and Conditions, for any reason, you will immediately cease using the Platform and scheduling Sampling Services; provided, however, unless directed otherwise by us, you will perform all Sampling Services already scheduled.
The rights and obligations of the Parties set forth in these Terms and Conditions which, by their nature, should survive termination or expiration of these Terms and Conditions (including, without limitation, Sections 3, 4, 7, 8, 9, 10, 11, 13 and 15), will survive any termination or expiration of your access to the Platform, your ability to provide the Sampling Services and these Terms and Conditions.
LIMITATION OF LIABILITY.
IN NO EVENT WILL BULK RESERVE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT BULK RESERVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL BULK RESERVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE PORTION of the SAMPLING FEES Bulk Reserve retains from Sampling Services you provide IN THE TWELVE (12) MONTHS PRIOR TO the incident giving rise to the liability.
Force Majeure. Bulk Reserve shall not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Bulk Reserve including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, insurrection, global pandemic, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
Indemnification. You will indemnify, defend and hold harmless Bulk Reserve and its officers, managers, employees, agents, affiliates, successors and permitted assigns (collectively, the “Indemnified Parties”) against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, reasonable attorneys' fees, incurred by an Indemnified Party, relating to, arising out of or resulting from your use of the Platform, your provision of Sampling Services, your gross negligence, willful misconduct or breach of these Terms and Conditions.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Notices. All notices, demands and other communications to be sent by one Party to the other under these Terms and Conditions shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by electronic communication (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications shall be addressed, if to Bulk Reserve at P.O. Box 19445, Denver, Co 80219 or at firstname.lastname@example.org, and if to you at the most recent address that you have provided to Bulk Reserve in writing).
Entire Agreement; No Assignment by Sampler. These Terms and Conditions constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein. These Terms and Conditions are binding on and inure to the benefit of the Parties and their respective permitted successors and permitted assigns; provided, however, you may not assign or delegate any of its rights or obligations under these Terms and Conditions without the prior written consent of Bulk Reserve.
No Waiver; Severability. No waiver of any default or breach of any agreement or provision herein contained shall be deemed a waiver of any other default or breach thereof or of any other agreement or provision herein contained. If any provision or portion of a provision of these Terms and Conditions is declared void and/or unenforceable, such provision or portion shall be deemed severed from these Terms and Conditions, which shall otherwise remain in full force and effect.
Amendment. We may revise and update these Terms and Conditions from time to time in our sole discretion. All modifications and amendments will become effective upon notification. You agree that the date of notification is the date the new terms are emailed or otherwise provided to you. Your continued use of the Platform or Website, or your continued provision of Sampling Services following notification of revised Terms and Conditions means that you accept and agree to the changes. You are expected to check our Website regularly so you are aware of any changes, as they are binding on you.
Governing Law; Venue. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Colorado applicable to contracts to be performed solely within such state. Subject to Section 15(f), the District Court of the City and County of Denver, State of Colorado, shall have exclusive jurisdiction, including in personam jurisdiction, and shall be the exclusive venue for any and all controversies and claims arising out of or relating to these Terms and Conditions.
Arbitration. Except for the right of either Party to apply at any time to a court of competent jurisdiction for injunctive relief, which right is expressly reserved, all disputes, claims and controversies between or among the Parties arising from these Terms and Conditions including, without limitation, contract, tort and other claims will be determined by binding arbitration pursuant to the Colorado Revised Uniform Arbitration Act, C.R.S. § 13-22-201, et. seq., and in conformance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The location of any and all arbitration proceedings will be Denver, Colorado. Any such dispute, controversy or claim will be determined by one (1) arbitrator selected by mutual agreement of the Parties (the “Arbitrator”). If the Parties are not able to expeditiously agree upon the Arbitrator, an arbitrator will be determined by striking names from a list of potential arbitrators provided by AAA. Any Arbitrator selected must be independent of the Parties to these Terms and Conditions. The Parties expressly consent to the personal and subject matter jurisdiction of the selected Arbitrator to arbitrate any and all matters to be submitted to arbitration hereunder. Arbitration will be conducted expeditiously as time will be deemed to be of the essence in determining any matters subject to arbitration. The decision or award of the Arbitrator is final and binding upon the Parties to the same extent and to the same degree as if the matter had been adjudicated by a court of competent jurisdiction and will be enforceable under the Federal Arbitrations Act. The costs and expenses of the arbitration and of the prevailing Party (including reasonable attorneys' fees) will be paid by the non-prevailing Party. The Parties expressly incorporate the bar on punitive damages set forth in C.R.S. § 13-21-102(5) and each Party knowingly waives any alleged right to recover an award of punitive damages from the other regardless of the nature of the dispute, controversy or claim. The arbitration proceedings and Arbitrator's award shall be maintained by the Parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the Parties' respective attorneys, tax advisors and senior management.
Costs and Attorneys’ Fees. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to these Terms and Conditions, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
Legal Representation and Construction of Agreement. The Parties have had the opportunity to retain their own independent legal and financial counsel with respect to the negotiation of this Agreement. They have independently, separately, and freely negotiated each and every provision of this Agreement as if all Parties drafted it, and therefore, waive any statutory or common-law presumption that would serve to have this document construed in favor of, or against, any Party.