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 Membership Agreement (this “Agreement”) between you (“Vendor”) and KTBS, LLC (“KTBS”) under which KTBS offers you access to and use of the Service through its 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 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 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 shall be subject to the following membership fees and terms:
Vendor agrees that KTBS may charge a fee for the Service and that any waiver of a fee for Services is in KTBS sole discretion.
Unless otherwise specified, the Service covered under this agreement is provided on a month to month basis. At the conclusion of any term or renewal, the agreement shall auto-renew for an additional term of equal length unless terminated by Vendor in writing to KTBS no less than fifteen (15) days prior to term expiration. Vendor hereby waives any notice requirement.
KTBS uses a third-party payment gateway to handle all processing of purchase and sale transactions between Vendor and buyers through the online KTBS Local Marketplace including credit, debit and other point of sale transactions. Service fees and bank charges associated with payment are borne by the Vendor. Vendor shall submit an application to the third-party processor for approval as a point of sale merchant. Upon approval from the point of sale service provider, KTBS will assign Vendor a URL address for the KTBS Local Marketplace.
KTBS will not independently collect state or local sales/use tax on any sale of Vendor’s 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 Vendor’s customers is solely Vendor’s responsibility and KTBS assumes no liability for the same. Vendor bears sole responsibility for charging, collecting and remitting state and local sales/use taxes on products sold through the marketplace and expressly acknowledges that KTBS has no responsibility or liability for the same.
2.2 The Service will have the following core features (which may be added to or modified, or suspended for scheduled or unscheduled maintenance purposes, from time to time at the sole discretion of KTBS and notified to you) (“Vendor Benefits”):
a) Company Profile – allows each Vendor to display and edit basic information about its business, such as year and place of establishment, estimated annual sales, number of employees, and products and services offered, etc.
b) Products – allows each Vendor to display and edit descriptions, specifications and images of products.
2.3 KTBS may suspend or terminate all or part of the above Vendor Benefits 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.
2.4 Benefits, features and functions available to a Vendor may vary for different countries and regions. No warranty or representation is given that a particular feature or function or the same type and extent of features and functions will be available.
2.5 The availability of any transactional features and functions on the Sites to any Vendor may be conditional on verification of Vendor’s identity and/or its designated bank account by KTBS and/or its approved independent third parties.
2.6 KTBS shall issue a Vendor ID and Password to each Vendor to access the Service through such Vendor’s Account. Each Vendor shall be solely responsible for maintaining the confidentiality of its Vendor ID and Password and for all use of and activities that occur under the Vendor ID and Password (whether such use or activities are authorized or not). A set of Vendor ID and Password is unique to a single Account and no Vendor shall share, assign or permit the use of its Account, Vendor ID or Password to another person, even to other individuals within the Vendor’s own business entity (where applicable). Each Vendor acknowledges that sharing of its Account with other persons, or allowing multiple users outside of its business entity to use its Account (collectively, “multiple use”), may cause irreparable harm to KTBS and each Vendor shall defend and indemnify KTBS against any loss or damages (including but not limited to loss of profits) and reimburse KTBS for reasonable attorney fees and litigation costs incurred to defend, as a result of such multiple use of an Account. Each Vendor hereby undertakes to notify KTBS immediately of any unauthorized use of its Account, Vendor ID or Password or any other breach of security. Each Vendor hereby agrees that KTBS shall not be liable for any loss or damages arising from the Vendor’s failure to comply with this paragraph.
2.7 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.
2.8 Each Vendor acknowledges that inability to use the Service wholly or partially for whatever reason may have adverse effects on its business. Each Vendor hereby agrees that in no event shall KTBS be liable to the Vendor 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.
2.9 You hereby represent and agree to authorize KTBS to provide all the information associated with your Vendor ID to the KTBS Sites for the purpose of facilitating your easy and fast access to the KTBS Sites. KTBS reserves the right, without prior notice and at its sole discretion, to suspend, restrict or deny access to or use of your Username and services provided by KTBS without liability for any losses or damages arising out of or in connection with such suspension or termination, if you: (a) use the services provided by KTBS, or through the Sites to defraud any person or entity; (b) engage in any unlawful activities including without limitation those which would constitute the infringement of intellectual property rights, a civil liability or a criminal offence; (c) engage in any activities that would otherwise create any liability for KTBS or the Sites.
2.10 If you voluntarily submit any information to the Sites for publication on the Sites through publishing tools, including but not limited to, company or business profile, product catalog, trade leads, business trust system and any discussion forum, then you are deemed to have given consent to the publication of such information on the Sites.
3. VENDOR RESPONSIBILITIES
3.1 Each Vendor hereby represents, warrants and agrees to (a) provide true, accurate, current and complete information about itself and its business references as may be required by KTBS and (b) maintain and promptly amend all information to keep it true, accurate, current and complete. To the extent permitted under applicable laws, each Vendor hereby grants an irrevocable, perpetual, worldwide and royalty-free, sub-licensable (through multiple tiers) license to KTBS to display and use all information provided by such Vendor in accordance with the purposes set forth in this Agreement and to exercise the copyright, publicity, and database rights you have in such material or information, in any media now known or not currently known. Information that is protected under data protection laws will only be used and kept in compliance with those laws.
3.2 Each Vendor hereby represents, warrants and agrees that the use by such Vendor of the Service and the Sites shall not:
a) contain fraudulent information or make fraudulent offers of items or involve the sale or attempted sale of counterfeit or stolen items or items whose sales and/or marketing is prohibited by applicable law, or otherwise promote other illegal activities;
b) be part of a scheme to defraud users or other Vendors of the Sites or for any other unlawful purpose;
c) infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secret or other proprietary right or rights of publicity and privacy or other legitimate rights;
d) impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
e) violate any applicable law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
f) contain information that is defamatory, libelous, unlawfully threatening or unlawfully harassing;
g) contain information that is obscene or contain or infer any pornography or sex-related merchandising or any other content or otherwise promotes sexually explicit materials or is otherwise harmful to minors;
h) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
i) contain any material that constitutes unauthorized advertising or 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;
j) involve attempts to copy, reproduce, exploit or expropriate KTBS’s various proprietary directories, databases and listings;
k) 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
l) 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 Vendor shall attempt to gain unauthorized access to such computer systems or networks;
n) otherwise create any liability for KTBS or its affiliates.
3.3 Each Vendor represents, warrants and agrees that with regards to information about or posted on behalf of any business reference, it has obtained all necessary consents, approvals and waivers from such reference to (a) act as such Vendor’s business reference; (b) to post and publish their contact details and information, reference letters and comments on their behalf; and (c) that third parties may contact such business references to support claims or statements made about the Vendor. Each Vendor further warrants that all reference letters and comments are true and accurate and hereby waives all requirements for such Vendor’s consent to be obtained before third parties may contact the business references.
3.4 Vendor shall not take any action which may undermine the integrity of KTBS’s feedback system, such as leaving positive feedback for himself using secondary IDs or through third parties or by leaving unsubstantiated negative feedback for another Vendor.
3.5 Each Vendor 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 Vendor. Each Vendor 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.
3.6 Each Vendor represents, warrants and agrees that it has obtained all necessary third party licenses and permissions and shall be solely responsible for ensuring that any material or information it posts on the Sites or provides to KTBS or authorizes KTBS to display does not violate the copyright, patent, trademark, trade secrets or any other personal or proprietary rights of any third party or is posted with the permission of the owner(s) of such rights. Each Vendor further represents, warrants and agrees that it has the right and authority to sell, distribute or offer to sell or distribute the products described in the material or information it posts on the Sites or provides to KTBS or authorizes KTBS to display.
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 Vendors. Despite the provision of the platform through the Sites, KTBS does not represent the Vendor/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 Vendors 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 vendors and users provide us when they register on the Sites. However, because user and vendor verification on the Internet is difficult, KTBS cannot and does not confirm each vendor or buyer/end 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 Vendor 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, fraudulent schemes, fraudulent payments, delay or default in delivery or payment, cost miscalculations, breach of contract, misrepresentations by buyer/user and transportation accidents (“Transaction Risks”). Each Vendor 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 Vendors 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, repairs, warranties, shipping, insurance, fees, sales and use taxes, other taxes or tariffs, title, licenses, fines, permits, handling, transportation and storage.
4.5 Vendor 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 Vendor’s Account if the Vendor 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.
4.6 In the event that any Vendor has a dispute with any party to a transaction, such Vendor 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, such as reviews by users of products or vendors, on the Sites free of charge to promote and encourage open, honest and respectful communication. The discussion boards on the Sites shall not be used as a marketing platform by Vendors and Vendors shall not post any information relating to trade leads, promotion of their products or their company profile.
5.2 Each Vendor 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 Vendor from whom the Content originated. This means that the posting Vendor, 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 obligated to monitor posting activities of any Vendor 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 Vendor. Each Vendor agrees to evaluate and bear all risks associated with the use of any Content including any reliance on its accuracy or completeness. Each Vendor understands that by using the KTBS discussion boards on the Sites, such Vendor may be exposed to Content that is offensive, indecent or objectionable.
5.4 Without prejudice to each Vendor’s responsibilities under clause 3 of this Agreement, each Vendor 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 Vendors; 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 Vendor 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 Vendor 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 Vendor 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 Vendor 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) suffered as well as reimburse KTBS for reasonable attorney fees and litigation costs incurred to defend, arising from any third party claim in relation to any Content such Vendor uploaded, posted or e-mailed on or through the discussion boards on the Sites, such Vendor’s use of the discussion boards on the Sites, or such Vendor’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 Vendors.
5.9 KTBS reserves the right to take whatever action it deems necessary to prevent a Vendor’s breach of clause 5.4 including the following:
a) issue a warning letter to the relevant Vendor (where the breaches are deemed by KTBS to be minor); or
b) ban the relevant Vendor 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 Vendors 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. Vendors 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 Vendor’s sole discretion and risk and each Vendor 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 Vendor 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 an 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, a viral pandemic or any other type of pandemic, war, 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 from a Vendor or a third-party service provider through the Sites;
c) unauthorized access by third parties to data or private information of any Vendor;
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 of the KTBS Local Marketplace site: https://ktbslocalmaketplace.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 Local Marketplace 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 Vendor 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 Vendor 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.