Eligibility. The Services are offered and available to users who are 18 years of age or older and are located in the United States unless otherwise approved by us in writing. By signing up for and using the Services, you represent and warrant that you meet all the foregoing eligibility requirements. If you do not meet these requirements, you must not access or use the Services.
Description of Services. Bulk Reserve allows users like you, through its Website (defined below), to locate and schedule hemp samplers (“Samplers”) and submit hemp samples (“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 “Services”). Without limiting the foregoing, the Services may be offered on a one-time basis, through a monthly subscription or as otherwise described herein or on the Website. You acknowledge and agree that the Services do not include sampling or testing by Bulk Reserve. Depending on the Sampler and Lab chosen, Bulk Reserve may agree to submit Samples to the applicable Lab and/or provide the results of the tests to you. In the event that Bulk Reserve agrees to take such actions as part of the Services, you acknowledge that it is doing so as a convenience to you and the applicable Sampler 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 you.
Access to and Use of Services.
Subject to and conditioned on your payment of the Applicable Fee (defined below) and compliance with all of these Terms and Conditions, Bulk Reserve grants you a non-exclusive, non-transferable right to access and use the Services that you have ordered, 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 Services 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 Services 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 Services 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 Services, or any related intellectual property in whole or in part; (iv) remove any proprietary notices from the Services or related intellectual property or documentation; or (v) use the Services 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 Customer 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 Services, 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.
User Account. In order to sign up for and use the Services, you may be required to create a user account (a “User Account”) through our website at www.certifiedhemptesting.com (the “Website”). You are responsible for keeping the password to your User Account a secret. We are not responsible for your use of the User Account, and by using the User Account and/or the Services, you take full responsibility for your actions relating to your use of the User Account and the Services. You agree to notify us immediately if you suspect or learn of any unauthorized use of your User Account. You also agree that while your employees may share your User Account, you are responsible for their use of such User 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 Services, you must:
Sign up for the 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 growing and selling of hemp, the Samples themselves and the testing process. In addition, you represent and warrant that you are in compliance with all such laws and regulations.
Only use the Services to test hemp, as defined under federal law.
Cooperate with Bulk Reserve, the Samplers and the Labs as necessary and applicable.
Respond promptly to any request from Bulk Reserve, a Sampler or a Lab to provide direction, information, approvals or authorizations.
Comply with all policies and requirements of the Samplers and Labs. By using the Services, you acknowledge that it is your responsibility to ensure that you are aware of such policies and requirements.
Submit the Samples to the applicable Lab or Bulk Reserve and provide the applicable tracking number to the applicable Lab or Bulk Reserve, all as directed by the Lab or Bulk Reserve.
If required or directed by the applicable Lab or Bulk Reserve, create a portal or other user account with such Lab or Bulk Reserve and provide all requested information, which must be true and correct.
Confirm that each Sampler and Lab selected by you is properly qualified and certified to perform the applicable sampling or testing. By using the Services or the Website, you acknowledge that we do not monitor for compliance by Samplers and Labs with applicable laws and regulations and that it is up to you to determine whether a Sampler or Lab will meet your requirements. In addition, we do not guarantee that all Samplers and Labs are in compliance with all applicable certification and licensing requirements.
Ensure that you choose a Sampler and Lab who will work together.
Fees and Expenses; Payment Terms.
In consideration of the provision of the Services by Bulk Reserve and the rights granted to you under these Terms and Conditions, you shall pay Bulk Reserve its then applicable fee for the Services you have chosen (the “Applicable Fee”). The Applicable Fee may be a one-time fee or a monthly or other periodic fee as described when you sign up for the Services. The Applicable Fee is in addition to any amount charged for the sampling and testing services provided by Samplers and Labs, which amount will be paid to Bulk Reserve unless Bulk Reserve otherwise directs you to pay such amount directly to the applicable Sampler or Lab. You acknowledge that in accordance with its agreements with the Samplers and Labs, Bulk Reserve may earn a portion of the fees paid for those services. Bulk Reserve may change the Applicable Fee at any time in its discretion. For recurring fees, Bulk Reserve will provide you at least thirty (30) days’ notice prior to increasing such fees by emailing or mailing notice to you or by posting notice on its Website. Fees for Samplers and Labs may change at any time with or without notice.
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 payable 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.
In addition to the Applicable Fee and the fees for the Sampler and the Lab, you are responsible for paying our then applicable transaction fee. The amount of this fee may change from time to time in our discretion.
All late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, and you shall reimburse Bulk Reserve for all costs of collection (including, without limitation, attorneys’ fees).
In the event you sign up for ongoing Services that require payment of a monthly or other recurring fee, you acknowledge that your subscription for such Services will renew automatically and you authorize us and the Payment Processor to charge your payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, you authorize us and the Payment Processor to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), or as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Bulk Reserve and the Payment Processor reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice you for the amount due.
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 Services. Any Services, PRODUCTS OR OFFERINGS sold 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 Services (the “Third Party Services”), including, without limitation, the services provided by Samplers and 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 Samplers and Labs with applicable Laws and Regulations, and the accuracy, quality, integrity, legality, reliability or ownership of the Samplers, 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, Sampler and Lab information, customer lists, pricing, discounts, or rebates, disclosed by Bulk Reserve to the Customer, 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 Customer 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 Customer at the time of disclosure; or (c) rightfully obtained by the Customer on a non-confidential basis from a third party.
Termination; Effect of Termination.
These Terms and Conditions shall begin on the Effective Date and shall apply to all of your uses of the Services.
In the event that you order Services to be provided on a subscription basis, either Party may terminate the Services at any time for any reason or no reason upon written notice to the other Party or as directed within your User Account; provided, however, you will not be entitled to any refund of amounts already paid to Bulk Reserve under these Terms and Conditions. Cancellation of the Services by you will not cancel any orders for Samplers or Labs that have already been submitted.
In the event that you order Services on a one-time basis, we may cancel the Services upon written notice to you. You may not cancel such Services once they have been ordered unless agreed to in writing by us and the applicable Sampler and Lab.
Bulk Reserve is not responsible for any cancellation or rescheduling by Samplers or Labs.
Upon expiration or termination of the Services or these Terms and Conditions for any reason, you will immediately cease using the Services.
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, 6, 7, 8, 9, 10, 11, 13 and 15), will survive any such termination or expiration of the 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 APPLICABLE FEES PAID TO BULK RESERVE BY THE CUSTOMER FOR THE SERVICES 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 Services or 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 Customer. 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.
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.