Terms and Conditions Agreement for TBSPromotions.com Website
THIS VERSION IN EFFECT AS OF January 20, 2013
THIS AGREEMENT GOVERNS YOUR USE OF THE BARBER SHOP MARKETING WEB SITE, TBSPROMOTIONS.COM AND THE CONTENT, INFORMATION AND SERVICES PROVIDED THROUGH THE WEB SITE. IT EXEMPTS TBS PROMOTIONS FROM LIABILITY OR LIMITS ITS LIABILITY AND CONTAINS OTHER IMPORTANT PROVISIONS THAT YOU SHOULD READ.
EACH TIME YOU USE THE WEB SITE, THIS AGREEMENT AS IT THEN READS WILL GOVERN YOUR USE. ACCORDINGLY, WHEN YOU USE THE WEB SITE YOU SHOULD CHECK THE DATE OF THIS AGREEMENT (WHICH APPEARS AT THE TOP OF THIS AGREEMENT) AND REVIEW ANY CHANGES SINCE THE LAST VERSION.
This Agreement contains the following provisions:
1. YOUR ACCEPTANCE OF THIS AGREEMENT
This is an Agreement between you and all persons you represent (and for purposes of this Agreement, "person" includes natural persons and any type of incorporated or unincorporated entity) and The Barber Shop Marketing ("TBS Promotions"), and governs your use of the TBSPromotions.com web site and the content, information and services provided through the TBSPromotions.com web site (collectively the "Web Site").
Each time you use the Web Site you signify your acceptance and agreement, and the acceptance and agreement of all persons you represent, without limitation or qualification, to be bound by this Agreement, and you represent and warrant that you have the legal authority to agree to and accept this Agreement on behalf of yourself and all persons you represent. If you do not agree with each provision of this Agreement, or you are not authorized to agree to and accept this Agreement, you may not use this Web Site.
2. SCOPE OF THIS AGREEMENT
This Agreement is in addition to and supplements any written agreements that you or any persons you represent have concerning your dealings with TBS Promotions.
This Agreement and all other agreements that you or any persons you represent have with TBS Promotions (now or in the future) together constitute the entire agreement regarding your access to and use of the Web Site, and supersede all previous agreements (written, oral or otherwise) regarding your access to and use of the Web Site. In the event of any inconsistency or conflict between the provisions of this Agreement and the provisions of any other agreement that you or any persons you represent have with TBS Promotions (now or in the future), the provisions of this Agreement shall govern regarding your access to and use of the Web Site.
3. CHANGES TO THIS AGREEMENT
TBS Promotions may, in its discretion, change, supplement or amend this Agreement as it relates to your future use of the Web Site from time to time, for any reason, and without any prior notice or liability to you or any other person. You may not change, supplement, or amend this Agreement in any manner.
4. PERMISSION TO USE THE WEB SITE
The Web Site may be accessed and used only by individuals who have: (a) reached the age of majority in their jurisdiction of residence and can form legally binding contracts under applicable law; (b) accepted this Agreement; (c) completed a TBS Independent Contractor Agreement. Persons using the Web Site must comply with all applicable laws. TBS Promotions may in its discretion refuse permission to access and use the Web Site.
5. WEB SITE COMMUNICATIONS AND ORDERS
All communications you submit through the Web Site or e-mail must be true, accurate and complete. TBS Promotions will rely upon the truth, accuracy and completeness of the communications you submit through the Web Site. If you submit any incorrect or incomplete communications, or if any communications are damaged or distorted during transmission to TBS Promotions, you and all persons you represent will be liable for any loss, damage or additional costs that you, TBS Promotions, or other persons may incur as a result.
You authorize TBS Promotions to: (a) accept communications that they receive from you by means of the Web Site or e-mail as if those communications had been given directly by you in writing and signed by you and you agree to be bound by electronic signatures; (b) disclose your communications to any clients, and TBS Promotions workers by means of the Web Site, e-mail or other communications; and (c) respond to your communications by means of Internet communications, e-mail or other communications. Communications you send to TBS Promotions by means of the Web Site or e-mail are not effective unless and until they are processed by the responsible TBS Promotions representative.
TBS Promotions may refuse to process any communications sent to TBS Promotions by means of the Web Site or e-mail, or may reverse the processing of any communications sent to TBS Promotions by means of the Web Site or e-mail, at any time in TBS Promotions' discretion, and without any notice or liability to you or any other person, including, without limitation, if: (a) TBS Promotions cannot process the communications; (b) the communications violate any provision in this Agreement or any other agreement that you or any other person may have with TBS Promotions; (c) TBS Promotions considers that the communications conflict with any other instructions or agreements with you or any person you represent; or (d) there is an operational failure or malfunction in connection with the transmission of the communications.
TBS Promotions endeavors to provide accurate information through the Web Site. Nevertheless, errors may occur. Accordingly, TBS Promotions reserves the right to change other information available through the Web Site at any time and from time to time without any notice or liability to you or any other person.
7. DISCLAIMER, LIABILITY EXCLUSION, LIABILITY LIMITATION, RELEASE AND INDEMNITY
TBS Promotions does not accept any liability for your use of the Web Site. For that reason, the following provisions apply to your use of the Web Site.
YOUR USE OF THE WEB SITE IS AT YOUR OWN RISK. THE WEB SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, DURABILITY, AVAILABILITY, TIMELINESS, ACCURACY OR COMPLETENESS, ALL OF WHICH ARE HEREBY DISCLAIMED BY TBS PROMOTIONS TO THE FULLEST EXTENT PERMITTED BY LAW. THERE WILL NOT BE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING, CONFIGURING AND MAINTAINING ALL COMPUTER HARDWARE, SOFTWARE, TELEPHONE SERVICES, AND OTHER EQUIPMENT AND SERVICES NECESSARY FOR YOU TO USE THE WEB SITE.
THE INTERNET IS NOT A SECURE MEDIUM, MAY BE SUBJECT TO INTERRUPTION AND DISRUPTION, AND INADVERTENT OR DELIBERATE BREACHES OF SECURITY AND PRIVACY. THE OPERATION OF THE WEB SITE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND TBS PROMOTIONS' CONTROL. THE OPERATION OF THE WEB SITE MAY NOT BE CONTINUOUS OR UNINTERRUPTED, SECURE OR PRIVATE.
TBS PROMOTIONS WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON AS A RESULT OF ANY FAILURE OR REFUSAL BY TBS PROMOTIONS TO GIVE EFFECT TO, OR FOR ANY FAILURE OR DELAY BY TBS PROMOTIONS IN RECEIVING, ACCESSING, PROCESSING OR ACCEPTING, ANY COMMUNICATION SENT TO TBS PROMOTIONS BY MEANS OF THE WEB SITE OR E-MAIL, OR FOR ANY LOSS OR DAMAGES SUFFERED AS A RESULT OF THE OPERATIONAL FAILURE, MALFUNCTION, INTERRUPTION, CHANGE, AMENDMENT OR WITHDRAWAL OF THE WEB SITE OR E-MAIL SERVICES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TBS PROMOTIONS MAKES NO REPRESENTATION, WARRANTY OR CONDITION THAT: (A) THE WEB SITE WILL BE COMPATIBLE WITH YOUR COMPUTER AND RELATED EQUIPMENT AND SOFTWARE; (B) THE WEB SITE WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED; (C) THE WEB SITE WILL MEET YOUR REQUIREMENTS; (D) THE INFORMATION CONTAINED IN THE WEB SITE OR DERIVED FROM THE WEB SITE WILL BE ACCURATE, COMPLETE, SEQUENTIAL, OR TIMELY; (E) CERTAIN OR ANY RESULTS MAY BE OBTAINED THROUGH THE USE OF THE WEB SITE; (F) THE USE OF THE WEB SITE, INCLUDING THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; OR (G) THE USE OF THE WEB SITE WILL NOT INFRINGE THE RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; AND TBS PROMOTIONS DISCLAIMS ANY AND ALL LIABILITY REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
TBS PROMOTIONS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OF USE, LOSS OF PRODUCTION, LOSS OF INCOME OR PROFITS (ANTICIPATED OR OTHERWISE), LOSS OF MARKETS, ECONOMIC LOSS, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OR EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, ARISING FROM, CONNECTED WITH, OR RELATING TO THE USE OF THE WEB SITE BY YOU OR ANY OTHER PERSON, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY TBS PROMOTIONS OR ANY PERSON FOR WHOM TBS PROMOTIONS MAY BE RESPONSIBLE, AND NOTWITHSTANDING THAT TBS PROMOTIONS MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED BY YOU OR ANY OTHER PERSON.
The exclusion of certain warranties and the exclusion of certain liabilities are prohibited by legislation in some jurisdictions. Such legislative limitations may apply to you.
YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE AS PERMITTED BY LAW TBS PROMOTIONS AND ALL OF THEIR RESPECTIVE CLIENTS, PARTNERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE WEB SITE.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS TBS PROMOTIONS AND ALL OF ITS RESPECTIVE CLIENTS, PARTNERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM OR DEMAND ARISING OUT OF, RELATED TO, OR CONNECTED WITH YOUR USE OF THE WEB SITE OR YOUR BREACH OF THIS AGREEMENT. YOU WILL ASSIST AND COOPERATE AS FULLY AS REASONABLY REQUIRED BY THE INDEMNIFIED PARTIES IN THE DEFENSE OF ANY CLAIM OR DEMAND. ADVICE AND INFORMATION PROVIDED BY TBS PROMOTIONS OR ITS RESPECTIVE REPRESENTATIVES, WHETHER ORAL OR WRITTEN, WILL NOT CREATE ANY REPRESENTATION, WARRANTY OR CONDITION OR VARY OR AMEND THIS AGREEMENT, INCLUDING THE ABOVE DISCLAIMER, LIABILITY EXCLUSION, LIABILITY LIMITATION, RELEASE AND INDEMNITY PROVISIONS, AND YOU MAY NOT RELY UPON ANY SUCH ADVICE OR INFORMATION.
FAIR ALLOCATION OF RISK AND LIABILITY.
YOUR ACKNOWLEDGE AND AGREE THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK AND LIABILITY.
8. OWNERSHIP AND PERMITTED USES OF THE WEB SITE
Copyright The Barber Shop Marketing 2013. All Rights Reserved. The Web Site and all information (in text, graphical, video and audio forms), images, icons, software, designs, applications, calculators, models, data, and other elements available on or through the Web Site are the property of TBS Promotions and are protected by United States and international copyright, trademark, and other laws. Your use of the Web Site does not transfer to you any ownership or other rights in the Web Site or its content.
The Web Site may only be used in the manner described expressly in this Agreement. In particular, except as expressly stated otherwise in this Agreement, the Web Site may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, without the express prior written consent of TBS Promotions.
The Web Site may be used only for lawful purposes. The Web Site may be accessed and used only using commercially available, SSL-capable Web browser software.
9. User Responsibilities
You may only use the System and any part thereof for lawful purposes. As one of the conditions of your use, you warrant and represent that you are a genuine and bona fide independent contractor applicant and that you are not using the System for any other purpose. It is YOUR RESPONSIBILITY to ensure that your use of the System complies with these Terms. You may not use the System or any part thereof to: (i) perform any activity which is or may be, directly or indirectly unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, libelous, vulgar, obscene, invasive of others' privacy, hateful, or racially, sexually, ethnically or otherwise objectionable; (ii) perform any activity which will or may breach a third party right including by submitting content that you do not have rights in; and (iii) advertising, offering, soliciting, licensing or granting public access to any content offered on the System. In addition, in order to allow us to maintain reliable and effective System, you specifically agree to refrain from intentionally providing any irrelevant, misleading or wrongful information and answers to questions or queries found on the System. You warrant and affirm that you will NOT:
9.1 Changes to the Service
We reserve the right, at any time and for whatever reason, to limit, deny, create different priorities to different users, modify, or cancel some or all of the functionality of the System or any part thereof, without prior notice. We may, at any time, suspend or cancel the System or any part thereof for any reason without prior notice.
9.2 Waiver of Right to see Tests and Results
The information and other content you provide to us will be processed and assessed in the System for use by the TBS Staff members who post contracts on the System. The tests you may undergo and the results thereof will not be available to you and you hereby waive any rights to see such tests and/or results or any part thereof.
9.4 System Security
We operate secure data networks protected by industry standard security protection systems. Our security and privacy policies are periodically reviewed and enhanced, as we believe is necessary from time to time. However, the System service and our servers, as most Internet applications, are vulnerable to various security issues and hence should be considered unsecured. Data and information sent using the System may be subject to privacy and security invading activities including, but not limited to, eavesdropping, electronic trespassing, sniffing, spamming, nuking, hacking, spoofing, imposture, breaking passwords, harassment, fraud, forgery and system contamination, use of viruses, worms and Trojan horses, causing unauthorized, damaging harmful access and/or retrieval of information and data on your computer and other forms and activities that may even be considered unlawful. We are doing our best to prevent such invasions from happening but we will not be responsible for any damage or harm caused as a result of such actions.
YOU ARE ESPECIALLY ADVISED AGAINST USING THE SYSTEM OR ANY PART THEREOF, WITH "CONTENT SENSITIVE" OR "MISSION CRITICAL" APPLICATIONS AND INFORMATION. "CONTENT SENSITIVE" SHALL MEAN ANY INFORMATION OR DATA YOU DO NOT WISH TO BE FREELY ACCESSIBLE AND GENERALLY AVAILABLE TO INTERNET USERS. "MISSION CRITICAL" APPLICATIONS AND USE SHALL MEAN APPLICATIONS AND USE THAT MAY RESULT IN DAMAGE.
9.4.1 The following covenants are binding for all the System users, and the failure to comply with any of these safeguards will constitute grounds for TBS Promotions to terminate any data transfer arrangement between TBS Promotions and the person(s) or entity(ies) concerned.
You are prohibited from violating or attempting to violate the security of the System, including without limitation, (i) accessing data not intended for such a user or logging into a server or account for which such a user is not authorized access, (ii) attempting to probe, scan or test the vulnerability of the System or our network or to breach security or authentication measures without proper authorization, (iii) attempting to interfere with services to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail-bombing" or "crashing", or (iv) forging any TCP/IP packet header or any part of the header information in any posting. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the System or any part thereof. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
9.4.2 Violations of System or network security may result in civil and/or criminal liability. TBS Promotions will investigate occurrences that may involve such violations and may involve, and cooperate with law enforcement authorities in prosecuting users who are involved in such violations. In addition, and without prejudice to any other remedy to which TBS Promotions may be entitled under these Terms and/or any applicable law, TBS Promotions may immediately terminate, without notice, your use of and access to the System and any part thereof, and in the event that you have paid any amount for the right to use the System, then without derogating from any other right for indemnification and/or compensation it may have, TBS Promotions may set-off any such funds and you hereby forfeit any right you may have to receive any such funds from TBS Promotions.
9.5 Proprietary Rights
TBS Promotions, Inc. is the owner of all intellectual property rights (including the copyrights) in the TBS Promotions System and any part thereof. Material published by TBS Promotions on this System may contain other proprietary notices or describe products, services, processes or technologies owned by TBS Promotions or third parties. Nothing in these Terms or in the System shall be construed as granting to you a license under any copyright, trademark, patent or other intellectual property right of TBS Promotions or any third party, except as expressly set forth herein.
10. TRADEMARK INFORMATION
TBS Promotions, TBS Promotions.com, the TBS Promotions Logo, and other marks and logos appearing on the Web Site are registered and unregistered trademarks, trade names and service marks owned or licensed by TBS Promotions. Other product and company names and logos appearing on the Web Site may be registered or unregistered trade names, trademarks and service marks of their respective owners.
Any use of the trade names, trademarks, service marks and logos (collectively "Marks") displayed on the Web Site is strictly prohibited. Nothing appearing on the Web Site or elsewhere shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Marks displayed on the Web Site.
11. PERSONAL INFORMATION PRIVACY
TBS Promotions collects, uses and discloses information regarding your use of the Web Site and your personal information in accordance with the Privacy Notice, found on this Web Site under the "Privacy" link. TBS Promotions may change the Privacy Notice from time to time in its discretion without prior notice or liability to you or any other person. By accepting this Agreement, and each time you use the Web Site, you consent to TBS Promotions' collection, use and disclosure of your personal information in accordance with the Privacy Notice as it then reads without any further notice or any liability to you or any other person.
12. LINKING, FRAMING, MIRRORING, SCRAPING AND DATA-MINING THE WEB SITE
Links to the Web Site without the express written permission of TBS Promotions are strictly prohibited. The framing, mirroring, scraping or data mining of the Web Site or any of its content in any form and by any method are strictly prohibited.
13. TERMINATION OF THIS AGREEMENT AND THE WEB SITE
If you breach any provision of this Agreement, you may no longer use the Web Site.
14. GOVERNING LAW AND DISPUTE RESOLUTION
The Web Site is controlled by TBS Promotions from Dallas, Texas, United States of America. This Agreement, your use of the Web Site, and all related matters are governed solely by the laws of the state of Wisconsin, United States of America and applicable federal laws of the United States of America, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration will be before a single arbitrator. The place of arbitration will be Milwaukee, Wisconsin, United States of America. Notwithstanding the foregoing, you or TBS Promotions may seek injunctive relief from an appropriate court located in Dallas, Texas prior to or during the arbitration.
Any claim or cause of action you may have arising from, connected with, or relating to your use of the Web Site, this Agreement, or any related matters must be commenced within six (6) months after the claim or cause of action arises, after which time the claim or cause of action is forever barred, regardless of any statute or law to the contrary.
15. OTHER MATTERS
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severed from the rest of this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Notwithstanding anything herein to the contrary, the following provisions of this Agreement, and all other provisions necessary for their interpretation or enforcement, will survive indefinitely after the termination of this Agreement and remain in full force and effect and be binding upon the parties as applicable: 7 (Disclaimer, Liability Exclusion, Liability Limitation, Release, and Indemnity); 8 (Ownership and Permitted Uses of the Web Site); 10 (User Responsibilities); 11 (Personal Information Privacy); 13 (Termination); 14 (Governing Law and Dispute Resolution); and 15 (Other Matters). The provisions of this Agreement will inure to the benefit of and be binding upon each of TBS Promotions and Affiliates and Providers and each of their respective successors and assigns and related persons, and you and your heirs, executors, administrators, successors, and personal representatives, and all persons you represent and their respective successors, assigns and related persons. You and the persons you represent may not assign this Agreement or the rights and obligations under this Agreement without the express prior written consent of TBS Promotions, which may be withheld in TBS Promotions discretion. TBS Promotions may assign this Agreement and its rights and obligations under this Agreement without your consent or the consent of any persons you represent.
No consent or waiver by any party to or of any breach or default by any other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by all parties.
You and any persons you represent (on the one hand) and TBS Promotions (on the other hand) are independent contractors and no agency, partnership, joint venture, employment or franchise relationship is intended or created by this Agreement or your use of the Web Site.
The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language.
Any rights not expressly granted by this Agreement are reserved to TBS Promotions.
This Agreement is subject to change without notice.
© TBS Promotions 2019