KTBS LOCAL MARKETPLACE
Updated May 7, 2020
1. ACCEPTANCE OF TERMS
1.1 WELCOME TO THE KTBS LOCAL MARKETPLACE (the “Service”). The following sets forth the terms and conditions of the KTBS Local Marketplace (this “Agreement”) between you (“User”) and the KTBS, LLC (“KTBS”) determined in accordance with this clause 1.1 under which KTBS offers you access to and use of the Service through the websites, mobile sites, mobile applications and other portals owned, operated, branded or made available by KTBS to you from time to time relating to the KTBS or KTBS Local Marketplace e-commerce platforms, including but not limited to: (a) the web and mobile-optimized versions of the websites identified by the uniform resource locator “www.ktbslocalmarketplace.com”; and (b) the mobile applications of the KTBS Local Marketplace e-commerce platform (collectively, the “Sites”).
1.2 KTBS may amend this Agreement at any time by posting the amended and restated Agreement on the Sites. The amended and restated Agreement shall be effective immediately upon posting. Posting by KTBS of the amended and restated Agreement and your continued use of the Service shall be deemed to be acceptance of the amended terms.
2. THE SERVICE
2.1 The Service will be offered free-of-charge for an unspecified time period unless terminated in accordance with the terms of this Agreement.
2.2 KTBS may suspend or terminate all or part of the above services at any time in its sole discretion without liability for any losses or damages arising out of or in connection with such suspension or termination. KTBS reserves the right to charge for the Service or any feature or functionality of the Service at any time in its sole discretion.
2.3 The availability of any transactional features and functions on the Sites to any User may be conditional on verification of User’s identity by KTBS.
2.4 In the event that KTBS offers User registration, each User shall be solely responsible for maintaining the confidentiality of its User ID and Password and for all use of and activities that occur under the User ID and Password (whether such use or activities are authorized or not). A set of User ID and Password is unique to a single Account and no User shall share, assign or permit the use of its Account, User ID or Password to another person. Each User hereby undertakes to notify KTBS immediately of any unauthorized use of its Account, User ID or Password or any other breach of security. Each User hereby agrees that KTBS shall not be liable for any loss or damages arising from the User’s failure to comply with this paragraph.
2.5 KTBS reserves the right to change, upgrade, modify, limit or suspend the Service or any of its related functionalities or applications at any time temporarily or permanently without prior notice. KTBS further reserves the right but shall not be obliged to introduce new features, functionalities, applications or conditions to the Service or to future versions of the Service. All new features, functionalities, applications, conditions, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise stated by KTBS.
2.6 Each User acknowledges that inability to use the Service wholly or partially for whatever reason may have adverse effects on User. Each User hereby agrees that in no event shall KTBS be liable to the User or any third parties for any inability to use the Service (whether due to disruption, changes to or termination of the Service or otherwise), any delays, inaccuracies, errors or omissions with respect to any communications or transmission or delivery of all or any part thereof, or any losses or damages (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Service.
3. USER RESPONSIBILITIES
3.1 Each User hereby represents, warrants and agrees to (a) provide true, accurate, current and complete information and (b) maintain and promptly amend all information to keep it true, accurate, current and complete.
3.2 Each User hereby represents, warrants and agrees that the use by such User of the Service and the Sites shall not:
a) contain fraudulent information;
b) be part of a scheme to defraud users of the Sites or for any other unlawful purpose;
c) impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
d) violate any applicable law, statute, ordinance or regulation;
e) contain information that is defamatory, libelous, unlawfully threatening or unlawfully harassing;
f) contain information that is obscene;
g) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
h) contain any material that constitutes unauthorized harassment (including but not limited to spamming), invades anyone’s privacy or encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law or regulation;
i) involve attempts to copy, reproduce, exploit or expropriate KTBS’s various proprietary directories, databases and listings;
j) involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information; and
k) involve any scheme to undermine the integrity of the computer systems or networks used by KTBS and/or any user of the Service and no User shall attempt to gain unauthorized access to such computer systems or networks;
m) otherwise create any liability for KTBS or its affiliates.
3.3 Each User acknowledges and agrees that KTBS reserves the right to, but shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or other material or information created, obtained or accessible through the Service. KTBS does not endorse, verify or otherwise certify the contents of any comments or other material or information made by any User. Each User is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other material or information.
3.4 If any User breaches the representations, warranties and covenants, KTBS has the right to suspend or terminate the Service with respect to such User without compensation and without liability for any losses or damages arising out of or in connection with such suspension or termination, and restrict or refuse any and all current or future use of the Service or any other services that may be provided by KTBS. KTBS reserves the right to cooperate fully with governmental and regulatory authorities, law enforcement bodies, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, to the extent permitted under applicable laws and policies, KTBS may disclose the User’s identity, contact information and/or information regarding the User’s account(s), transactions or activities carried out on or via the Sites, if requested by a government, regulatory or law enforcement body or an injured third party, or as a result of a subpoena or other legal action, and KTBS shall not be liable for damages or results thereof and User agrees not to bring any action or claim against KTBS for such disclosure. In connection with any of the foregoing, KTBS may suspend or terminate the Account of any User as KTBS deems appropriate in its sole discretion.
4. TRANSACTIONS BETWEEN BUYERS AND SUPPLIERS
4.1 Through the Sites, KTBS provides an electronic web-based platform for exchanging information and concluding sale and purchase transactions of products and services online between buyers and suppliers. KTBS reserves the right to limit certain features and functions of the platform to prescribed Users. Despite the provision of the platform through the Sites, KTBS does not represent the seller or the buyer in specific transactions whether or not such transactions are made on or via the Sites. KTBS does not control and is not liable to or responsible for the quality, safety, lawfulness or availability of the products or services offered for sale on the Sites or the ability of the suppliers to complete a sale or the ability of buyers to complete a purchase.
4.2 Users are hereby made aware that there may be risks of dealing with people acting under false pretenses. KTBS uses several techniques to verify the accuracy of the information our users provide us when they register on the Sites. However, because user verification on the Internet is difficult, KTBS cannot and does not confirm each User’s purported identity shown on the Sites and can only use reasonable efforts to verify the personal identity of the representative of a seller. We encourage you to use the various tools available on the Sites, as well as common sense, to evaluate with whom you are dealing.
4.3 Each User accessing or using the Sites or Service shall fully assume the risks of conducting any purchase and sale transactions in connection with or through the Sites or Service. Such risks shall include, but not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective products, delay or default in delivery or payment, cost mis-calculations, breach of warranty, breach of contract and transportation accidents (“Transaction Risks”). Each User agrees that KTBS shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise as a result of or in connection with any Transaction Risks.
4.4 Users and suppliers are solely responsible for setting out, agreeing on, entering into and performing all of the terms and conditions of the transactions conducted on, through or as a result of use of the Sites, including, without limitation, terms regarding payment, returns, refunds, warranties, shipping, insurance, fees, sales and use tax, other applicable taxes, title, licenses, fines, permits, handling, transportation and storage.
4.5 KTBS will not independently collect state or local sales/use tax on any sale of product(s) made through the marketplace. KTBS will not remit any state or local sales/use tax charged on products sold through the portal to any state or local taxing authority. The responsibility to charge, collect and remit state or local sales/use taxes from is solely the seller and buyer’s responsibility and KTBS assumes no liability for the same. The seller and buyer bear sole responsibility for remitting state and local sales/use taxes on products sold through the marketplace and expressly acknowledge that KTBS has no responsibility or liability for the same.
4.6 User agrees to provide all information and materials as may be reasonably required by KTBS in connection with its transactions made via the transactional platform on the Sites. KTBS has the right to suspend or terminate any User’s Account if the User fails to provide the required information and materials without liability for any losses or damages arising out of or in connection with such suspension or termination.
4.7 In the event that any User has a dispute with any party to a transaction, such User agrees to release KTBS (and our agents, affiliates, directors, officers, managers, members, employees and representatives) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute or the transaction and to further defend, indemnify and hold harmless KTBS from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) and reasonable attorney fees and litigation costs incurred to defend.
5. USE OF DISCUSSION BOARDS ON THE SITE
5.1 KTBS provides its Users use of discussion boards on the Sites free of charge to promote and encourage open, honest and respectful communication such as User reviews of products and vendors. The discussion boards on the Sites shall not be used as a marketing platform by Users and Users shall not post any information relating to promotion of products or businesses.
5.2 Each User acknowledges that all data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted through a discussion board on the Sites, are the sole responsibility of such User from whom the Content originated. This means that the posting User, and not KTBS, is entirely responsible for all Content that is uploaded or posted via our discussion boards on the Sites. KTBS does not control the Content posted via discussion boards and therefore does not guarantee the accuracy, integrity or quality of such Content.
5.3 KTBS reserves the right to, but shall have no obligation to, delete or edit any postings in its sole discretion without prior notice. KTBS may but shall not be obliged to monitor posting activities of any User who is in breach of this Agreement and may restrict their ability to post messages on the discussion boards on the Sites. Under no circumstances will KTBS be liable in any way for any Content, including (without limitation) any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of the discussion boards by such User. Each User agrees to evaluate and bear all risks associated with the use of any Content including any reliance on its accuracy or completeness. Each User understands that by using the KTBS discussion boards on the Sites, such User may be exposed to Content that is offensive, indecent or objectionable.
5.4 Without prejudice to each User’s responsibilities under clause 3 of this Agreement, each User agrees not to use the discussion boards on the Sites to:
a) upload, post or e-mail any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
b) harm minors in any way;
c) impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity or disguise the origin of any Content;
d) “stalk” or otherwise harass another;
e) to use the personal data about other users for purposes unrelated to the discussion board or to disclose personal data on the discussion board about third parties without their authorization;
f) upload, post or e-mail any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
g) upload, post or e-mail any Content that infringes any intellectual property rights or other legitimate rights of any party;
h) upload, post or e-mail any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, or any other form of solicitation;
i) upload, post or e-mail any Content that contains computer viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
j) upload, post or e-mail any Content that contains a complaint regarding KTBS’s services or refers to such a complaint on the Sites or to any other Users; any such complaint must be directed to the customer service e-mail on the Sites; or
k) violate any applicable national or internal laws or regulations.
5.5 Each User acknowledges that KTBS does not pre-screen Content but that KTBS shall have the right (though not the obligation) in its sole discretion to move, modify or remove any Content that is posted or uploaded on the discussion boards on the Sites.
5.6 To the extent permitted under applicable laws, each User grants to KTBS a perpetual, world-wide, royalty-free irrevocable, non-exclusive license (including the right to sub-license through multiple tiers) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any Content (in whole or part) such User uploaded, posted or supplied to KTBS for posting on the Sites and/or to incorporate such Content in other works in any form, media or technology now known or developed. Information that is protected under data protection laws will only be used and kept in compliance with those laws.
5.7 Each User shall defend, indemnify and hold KTBS and its subsidiaries, affiliates, employees, officers, agents or partners harmless from and against any direct or indirect loss or damage (including consequential loss and loss of profits, goodwill or business opportunities) and all reasonable attorney fees and litigation costs incurred to defend, arising from any third party claim in relation to any Content such User uploaded, posted or e-mailed on or through the discussion boards on the Sites, such User’s use of the discussion boards on the Sites, or such User’s breach of the provisions set out in clause 5.4.
5.8 On being made aware of any such breaches, KTBS may ban, delete or prohibit any Content that relates to those breaches or that KTBS in its sole discretion consider to be harmful to the public or the rights of KTBS or any of its affiliates, licensors, partners or Users.
5.9 KTBS reserves the right to take whatever action it deems necessary to prevent a User’s breach of clause 5.4 including the following:
a) issue a warning letter to the relevant User (where the breaches are deemed by KTBS to be minor); or
b) ban the relevant User from discussion boards on the Sites (where the breaches are deemed by KTBS to be major).
All incidents will be logged and KTBS’s decision shall be final in all such cases.
5.10 All information and/or other Content posted on the Sites by the KTBS service team or by Users or third-party partners is supplied for information purposes only and shall not under any circumstances be construed as legal and/or business advice or a legal opinion. Users are encouraged to seek independent professional advice in such situations.
6. LIMITATION OF LIABILITY
6.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND KTBS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.
6.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, KTBS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY, ACCURACY, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR CURRENTNESS OF ANY INFORMATION PROVIDED ON OR THROUGH THE SITES.
6.3 Any material downloaded or otherwise obtained through the access to or use of the Sites or Service is done at each User’s sole discretion and risk and each User is solely responsible for any damage to its computer system or any loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by any User from KTBS or through or from the Service shall create any warranty not expressly stated in this Agreement.
6.4 The Sites may make available to User services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall KTBS or its affiliates be held liable for any such services or products.
6.5 Under no circumstances shall KTBS be held liable for any delay or failure or disruption of the Service resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, Acts of God, war, a viral pandemic or any other type of pandemic, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
6.6 To the extent permitted by law, KTBS shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort or otherwise or any other damages resulting from any of the following:
a) the use or the inability to use the Service;
b) any defect in goods, samples, data, information or services purchased or obtained through the Sites;
c) unauthorized access by third parties to data or private information of any User;
d) statements or conduct of any user of the Sites; or
e) any other matter relating to the Sites or Service however arising, including negligence.
7.1 Please review the following policies to know how we use and protect your personal information when you use Services: https://ktbslocalmarketplace.com/privacy-policy.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 KTBS is the sole owner or lawful licensee of all the rights to the Service. The Service embodies trade secrets and intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Service shall remain with KTBS, its affiliates or licensors, as the case may be. All rights not otherwise claimed under this Agreement or by KTBS are hereby reserved.
8.2 “KTBS” and related icons and logos are registered trademarks or trademarks or service marks of KTBS, LLC in various jurisdictions and are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.
9.2 No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
9.3 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
9.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
9.5 KTBS’s failure to enforce any right or failure to act with respect to any breach by a User under this Agreement will not waive that right nor waive KTBS’s right to act with respect with subsequent or similar breaches.
9.6 KTBS shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any person or entity (including any affiliates of KTBS). The User may not assign, in whole or part, this Agreement to any person or entity. 9.7 THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY. ALL DISPUTES, CONTROVERSIES OR DIFFERENCES WHICH MAY ARISE BETWEEN THE PARTIES OF OR IN RELATION OR IN CONNECTION WITH THIS AGREEMENT OR THE BREACH THEREOF SHALL BE CONDUCTED IN ENGLISH, AND SHALL BE FINALLY SETTLED BY BINDING ARBITRATION CONDUCTED IN SHREVEPORT, LOUISIANA BEFORE A SINGLE ARBITRATOR, IN ACCORDANCE WITH THE THEN EXISTING RULES OF THE STATE OF LOUISIANA. JUDGMENT UPON THE AWARD BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTWITHSTANDING THE FOREGOING, DISPUTES CONCERNING PATENTS, COPYRIGHTS, MORAL RIGHTS, TRADEMARKS, AND TRADE SECRETS AND CLAIMS OF PIRACY OR UNAUTHORIZED USE OF THE JET SITES SHALL NOT BE SUBJECT TO ARBITRATION. THE PREVAILING PARTY IN ANY LEGAL ACTION OR LEGAL PROCEEDING UNDER THIS AGREEMENT SHALL BE ENTITLED TO RECOVER REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES.