Effective Date: September 25, 2018
SampleServe Services consists of software (as defined below), and other products, services and web sites hosted or made available by SampleServe, which enable you to store and access scientific data obtained in the field. Our software makes it easier for people, businesses, organizations or institutions to securely store, access, report and collaborate on environmental and scientific data. The SampleServe Service is cloud based so you can do innovative investigations and reporting on multiple computer devices and systems. In exchange for being enabled to use the Services, you agree to abide by these Terms.
Terms of Service
This document, the SampleServe Terms of Service, constitutes a contract between you and SampleServe, Inc. (“SampleServe” “SampleServe” or “we/our/us”) so please read carefully. The Terms of Service govern your use of our Services (“Services”). The Terms include the provisions set forth in this document and in the SampleServe and other terms or conditions that may be presented to you from time to time in connection with specific Service offerings. If you do not agree to these Terms, you do not have the right to access or use our Service. If you do use our Services, your use shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract.
By using the Services, you acknowledge, accept and agree with all provisions including, without limitation, the use and treatment of your Account Information and your Content in accordance with these terms.
Parties to this Contract
You are one party to the contract. The other party to this contract is SampleServe a corporation headquartered in Michigan. If you are using the Services on behalf of an organization, you are promising to SampleServe that you have the authority to bind that organization to these Terms (in this event, “you” and “your” will refer to that organization). If the organization has a different paid contract with SampleServe, the terms of that contract will apply to your use of the Services.
Your SampleServe Account
First, you need to create a SampleServe account. A SampleServe account provides you access to the Services provided by us. You create an account by providing us with an accurate email address which will be used as your username and creating a password. We refer to this as your “Account Information.” We encourage you to use a distinct and non-obvious password, ideally one that is different from what you use for other services. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information and you will be responsible for all activities that occur under your account. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content, you should immediately change your password and notify our Customer Support team. SampleServe is not responsible for any losses arising from the unauthorized use of your SampleServe account.
Second, although you may use SampleServe with a web browser on a variety of computing devices, obtaining the computing devices and paying for their connectivity and data plans is your responsibility. SampleServe also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
We may provide you with notices by email, regular mail or postings on the web site(s) related to the affected Service. This is another reason why it’s important for you to make sure your Account Information is accurate, complete and up to date.
Your privacy in your Content is a paramount concern for us, and we hope that we never need to examine anyone’s Content. However, there are limited circumstances in which we may have the need to review part or all of your Content and reserve the right to review inappropriate Content.
Except as described here, unless you elect to enable others to view or have access to the Content you submit to the Service, no one else should see your Content without your consent. Of course, if you do elect to publish or share any portion of your Content by creating reports, or providing use of your username and password to another, then you would be enabling each of those recipients, use, display, perform, distribute and modify your Content (subject to any understandings or agreements you and such users may work out without SampleServe’s involvement). In addition, SampleServe may enable you to use a variety of third party services and applications that interact with the Service and your Content, and you should review the access rights you provide to those services or applications, as you may enable them to access your Content through your agreements with those parties.
The SampleServe Service is available worldwide, but our data processing operations take place in the United States. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal Account Information and Content), through computer networks owned by SampleServe and third parties located in other locations in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.
Your Rights Under These Terms
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for as long as you are not barred from receiving the Service under the laws applicable to you; until you close your account voluntarily; or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, non-assignable and non-exclusive license to use the SampleServe Software provided to you by or on behalf of SampleServe, for the sole purpose of enabling you to use the SampleServe Software and enjoy the benefit of the Services, subject to any applicable license terms provided with the SampleServe Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in SampleServe or the Service.
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do agree to grant SampleServe a limited license, as described below, so we can make your data accessible and usable on the Services. Other than this limited license and other rights you grant in these Terms, SampleServe acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
While you own the Content you store with SampleServe, you acknowledge and agree that SampleServe own all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on SampleServe’s servers or any of the SampleServe software applications for compatible computing devices that enable access and use of the Service through such device (the “SampleServe Software”).
Intellectual Property Rights
In agreeing to these Terms, you also agree that the rights in the Service and SampleServe Software, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any SampleServe Software, unless you are expressly permitted to do so under an open source license or we give you express written permission.
Acceptable Use of the Service
Your use of our Service must be in accordance with these Terms. When it comes to your use of SampleServe, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content – such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, “Content”) – created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with SampleServe. The User Guidelines provide more specific details regarding the appropriate conduct on the Service.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to SampleServe that you have the unfettered legal rights and authority to submit your Content to SampleServe, and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to SampleServe and granting SampleServe the rights described in these Terms, you are not infringing the rights of any person or third party. SampleServe will not be responsible for any losses arising from any unauthorized use of Content that you do not have legal right to. Additionally, you will indemnify and hold harmless SampleServe from any legal actions taken by a party who has legal rights to Content that was inappropriately uploaded to SampleServe.
You agree that you will not, nor will you encourage others, to use our Service to harm others or in any way harm our Service. You must not take any action that may damage, disable, encumber or impair our service or any network connected to our service. You must not resell or redistribute our Service, or any part of it. You agree that you will not use any unauthorized methods to modify, reroute or gain access to our Service. Similarly, you must not use any automated processes (such as a bot, virus, malware or periodic caching) to improperly access or use our Service. You must not use our Service beyond the allocated features and amounts specified in the Service or in violation of our fair use policy. You must not use our Service to violate any law nor shall you use our Service to distribute any malicious content. Additionally, you must not use our Service to share information or content that you do not have a legal right to or that is, in any manner, illegal.
If you elect to use any third party service or application that is integrated with SampleServe, you also agree that the licenses granted to SampleServe in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant SampleServe the right and license to enable such access to your Content.
You understand and agree that SampleServe, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
We retain the right to deactivate, change, and/or require you to change your SampleServe account, project URLS, custom links or any other domains you may obtain through the use of our Service.
Duty to Respond To Copyright and/or Other Intellectual Property Violations
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which we believe to comply with the United States Digital Millennium Copyright Act [www.copyright.gov] and other applicable laws). If you believe that your intellectual property rights have been violated, please notify our customer service team and we will investigate. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and SampleServe does not accept any obligation to take any particular action to enforce or protect any party’s intellectual property rights.
In order to enable SampleServe to operate the Services, we must obtain from you certain license and other rights to the Content you submit so that our processing, maintenance, storage, technical reproduction, back-up and distribution and related handling of your Content. Your content must not infringe applicable copyright and other laws. This means that by using the Services and uploading Content, you grant SampleServe a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smart phones as well as computers) and reproduce such Content to enable SampleServe to operate the Service. You also agree that SampleServe has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
SampleServe reserves the right to use anonymous user data in order to test the Service, product development, Service updates and any and all other measures to provide a better, more accurate services. SampleServe will not disclose any site-specific data for these purposes but does retain the right to perform analysis across numerous sites to formulate scientific trending and statistical research.
You agree that these rights and licenses are royalty free, irrevocable and worldwide (for so long as your Content is stored with us), and include a right for SampleServe to make such Content available to, and pass these rights along to, others with whom SampleServe has contractual relationships related to the provision of the SampleServe Services, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if SampleServe determines such access is necessary to comply with its legal obligations.
SampleServe’s Right to Engage Third Parties
SampleServe may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to you, and you hereby agree that such third party involvement is acceptable.
SampleServe’s Right to Use Third-Party Software
SampleServe may from time to time include as part of the Services and SampleServe Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. SampleServe expressly disclaims any warranty or other assurance to you regarding such third party software.
SampleServe’s Right to Include Third-Party Links
We may include or recommend third party resources, regulations, materials and/or links to third party websites and applications as part of, or in connection with, the Services. We have no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
SampleServe’s Right to Provide Advertisements
Our business model is to make the Service so valuable that our users will opt to pay for Services. However, we may display advertisements and promotions on or in connection with the Services, some of which may be paid for by third parties. These messages may promote SampleServe products and services, demonstrate various uses of our Service and promote certain third party applications and services that work with SampleServe.
Inasmuch as some advertising or other messaging content we provide will be based upon information provided by third parties, we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Services, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
SampleServe’s Right to Update Our Software
In connection with any modification of the Services, SampleServe may automatically download software application updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. SampleServe will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), SampleServe may require you to install the update to continue accessing the Service. In all cases, you agree to permit SampleServe to deliver these updates to you (and you to receive them) as part of your use of the Service.
Right to Modify the Service
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Services and any SampleServe Software, including changes that may affect the previous mode of operation of the Services. We expect that any such modifications will enhance the overall Services, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use the base SampleServe service, you will not enjoy all of the benefits provided to subscribers of the SampleServe Premium service (Mapping, Contouring Packages, etc..).
You also acknowledge that a variety of SampleServe actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that SampleServe has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you find that any such modifications or interruption of the Service adversely affects you, you may notify us, explain the adverse impact the modification or interruption has created and, if you desire, request a termination of your Services. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification or interruption, extend the duration of your Service subscription for a period of time equal to the interruption and/or refund a portion of your Service subscription fee equal to the remaining unused term of the Service subscription, as we determine appropriate.
In order to protect our Service, protect our customers or to stop a breach of these Terms, we retain the right to block or otherwise prevent the delivery of any type of file, data, or other content to or from our Service.
You may close your account with our Service at any time, for any reason (or no reason), and you don’t even have to give us notice. However, if you desire to deactivate your account you need to take certain specific steps.
SampleServe may suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for SampleServe suspending or closing your account may include, without limitation: (i) breach or violation of these Terms or any Separate Agreement, (ii) an extended period of inactivity (determined in SampleServe’s sole discretion), (iii) your nonpayment of any fees or other sums due SampleServe or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (vi) unexpected technical or security issues or problems.
In most cases, in the event we elect to close your account , we will provide at least 60 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on SampleServe’s servers (unless we determine that we are legally prohibited from enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
SampleServe’s pledge to protect the privacy of your Content will continue, even after your account is closed. We will not provide your Account Information, or your Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so. We encourage you to include your Account Information, with instructions on how to access your Content, in your will or other estate plans, so that anyone you wish to have access to your account will have the means to do so. Content of closed accounts will be permanently deleted 180 days after the date an account is closed.
Submission of Ideas to SampleServe
When you submit any ideas, suggestions, documents and/or proposals relating to the Services (or other products or services) to SampleServe through the “Contact Us,” interfaces or through any other mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) SampleServe is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) SampleServe shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) SampleServe may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of SampleServe without any obligation of SampleServe to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from SampleServe under any circumstances.
You agree to indemnify and hold SampleServe, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
The Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SampleServe EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) SampleServe DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SampleServe OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SampleServe, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF SampleServe HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) SampleServe’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
Exclusions and Limitations
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Send A Notice to SampleServe
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to SampleServe must be delivered by email to support@SampleServe. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
101 N. Park Street
Traverse City, MI 49684 USA
Countries Where SampleServe is Not Allowed
You may not use or otherwise export the Service or any SampleServe Software except as authorized by United States law and the laws of the jurisdiction in which the Service is hosted and accessed by you, or where your use any of the SampleServe Software. In particular, but without limitation, the SampleServe Software may not be (i) exported or re-exported into any U.S. embargoed countries or (ii) provided to or used by anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Service in any such country.
Applicable Law of the Terms
If you are a resident of the United States or Canada, these Terms and the relationship between you and SampleServe (including any dispute) shall be governed in all respects by the laws of the State of Michigan, United States of America, as they apply to agreements entered into and to be performed entirely within Michigan between Michigan residents, without regard to its conflict of law provisions.If you reside outside of the United States, Canada, these Terms and the relationship between you and SampleServe (including any dispute) shall be governed in all respects by the laws of the United States and shall be considered to have been made and accepted in the United States, without regard to conflict of law provisions.If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
What Do I Do If I Think I Have A Claim Against SampleServe
Let us Know About Your Complaint
We want to know if you have a problem so we encourage you to contact our customer support if you have any concerns with respect to the operation of the Service or any SampleServe Software, as we want to ensure that you have an excellent experience.
Initiating a Formal Claim
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved exclusively by the processes set forth in these Terms. SampleServe provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against SampleServe in any other manner, you shall be in violation of these Terms and you agree that SampleServe shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse SampleServe for its reasonable costs incurred in defending against such improperly initiated claim. You agree that, prior to initiating any formal proceedings against SampleServe, you will send us a notice to our attorneys at email@example.com and state that you are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are a resident of the United States or Canada, you agree that any claim or dispute you may have against SampleServe must be resolved exclusively by a state or federal court located in Grand Traverse County, Michigan. You agree to submit to the personal jurisdiction of the courts located within Grand Traverse County, Michigan for the purpose of litigating all such claims or disputes.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are not a resident of the United States, or Canada, you agree that any claim or dispute you may have against SampleServe must be resolved exclusively by the courts in Grand Traverse County, Michigan. You agree to submit to the personal jurisdiction of the courts located within Grand Traverse County, Michigan for the purpose of litigating all such claims or disputes.
Alternative Dispute Resolution Process
Unless you are subject to the Arbitration Agreement set out below, if a claim arises between you and SampleServe where the total value of such claim is less than US $10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This “Alternative Dispute Resolution Process” shall be initiated by either party sending notice to the other, in which event you and SampleServe agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the “Arbitration Manager”) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Dispute Manager will be borne equally by the parties or be submitted to the Dispute Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.
If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and SampleServe agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Any of our arbitration proceedings will be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in Grand Traverse County, Michigan or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Michigan, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different SampleServe users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, SampleServe will pay all filling, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, SampleServe will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse SampleServe for all fees associated with the arbitration paid by SampleServe on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
YOU AND SampleServe AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SampleServe USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply.
Claims Are Time-Barred
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
Changes to These Terms
Changes in these Terms are almost certain to happen. In fact, changes may be made to the Services as well as the laws that apply to you and us. If we make a change to our Services and/or our Terms of Service, we’ll do our best to provide you with advance notice. In some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the terms or to stop using our Service (see “How is My Account Closed” below). Keep in mind that your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms.
EXCEPT FOR CHANGES MADE BY US AS DESCRIBED HERE, NO OTHER AMENDMENT OR MODIFICATION OF THESE TERMS SHALL BE EFFECTIVE UNLESS SET FORTH IN A WRITTEN AGREEMENT BEARING A WRITTEN SIGNATURE BY YOU AND US. FOR CLARITY, EMAIL OR OTHER COMMUNICATIONS WILL NOT CONSTITUTE AN EFFECTIVE WRITTEN AGREEMENT FOR THIS PURPOSE.
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and SampleServe and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and SampleServe for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of SampleServe shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.