K-Tex TECHNOLOGIES, LLC, a Texas limited liability company dba K-Link (herein "K-Link") provides services to you subject to the following conditions. If you visit or use K-Link, then you accept these conditions. Please read them carefully.
1 Certain Defined Terms
The following defined terms appear in these Terms of Use:
Buyer – defined as FOB Merchant or Major Merchant.
EWR – defined as electronic warehouse receipt.
FOB Merchant – defined as a small handler of cotton, that engages in buying from gins and selling to major merchants, and who actually ships little to no cotton.
ICE – defined Intercontinental exchange. (NYSE: ICE).
Major Merchant – defined as a large-scale cotton shipper, who engages in large volumes of cotton trading across multiple regions.
Seller – defined as the gin, FOB Merchant, or a Major Merchant who is selling cotton to a Buyer.
Us – defined to mean K-Link.
User license – annual subscription purchased to obtain login identification, and all rights to use and view all information published by K-Link.
We – defined to mean K-Link.
You – defined to mean either Seller or Buyer.
2 A. Each user acknowledges that K-Link is an information exchange platform, and its services are to provide Sellers and Buyers the opportunity to transact business with other Sellers and Buyers concerning the sell of cotton or any other commodity for which K-Link may be used. You acknowledge that K-Link is not responsible for the performance of the obligations by either the Seller or the Buyer. The obligations between the Seller and Buyer are set by each Seller and Buyer's respective contracts in which the Sellers and Buyers have agreed to each of the party's responsibilities.
B. All Sellers represent and warrant to K-Link and all other parties that (1) that the recap of the cotton being offered for sale is accurate to the best of the Seller's knowledge, (2) the Seller has authority to sell either because the Seller is the principal or authorized agent of the producer/owner of the cotton that is being sold, (3) the Seller has complete authority to transfer title to the cotton being sold and receive payment as the principal or authorized agent of the Seller of the cotton, and (4) the Seller will invoice the Buyer for the cotton, plus the Seller's commission, if any, (5) the Seller will deliver the proceeds to the Seller's principal if the Seller is not the principal.
C. All Buyers represent and warrant that (1) they have authority as principal or agent for the principal to buy the cotton under the terms and conditions agreed to by the parties, and (2) that they have authority and will make payment for the cotton purchased as provided herein.
D. Once a bid is accepted by the Seller, then the Seller will invoice the merchant for the cotton, plus the Seller's commission, if any, and then provide to the Buyer the EWR's within a reasonable amount of time. Once the invoice and EWR are received by the Buyer, then the Buyer will be responsible for wiring payment of the cotton and commission, if any, to the Seller's account no later than the next business day.
3 Requirements for Registration
In order to use the Service, you must complete an application and furnish all information required by us. We, in our sole and absolute discretion may refuse to approve or may terminate existing registration with or without cause or notice, other than any notice required by applicable law and not waived herein.
4 Eligibility
To be eligible you must be a cotton gin, major merchant, FOB merchant, or such other person or entity that is accepted by us to use this trading platform, and complete and pay the license fee under a separate License Fee and Registration Agreement. If you use this site, you are responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account and password. You agree to notify us immediately of any unauthorized use of your username or password or any other breach of security regarding the Service of which you have knowledge. K-Link reserves the right to refuse service, terminate accounts, edit content, or cancel orders in its sole discretion.
If you are a business entity, you represent and warrant that you are:
a. duly authorized to do business in the country or countries where you operate; and
b. your employees, officers, representatives, and other agents accessing the Service are duly authorized to access the Service and to legally bind you to these Terms of Service and all transactions conducted under your username and password.
5 Privacy
You understand and agree that personal information provided to us in connection with the Service is subject to K-Link's Privacy Policy located under the "Privacy Policy" tab.
6 Electronic Communications
When you visit K-Link or communicate electronically with K-Link, you consent to receive communications from us electronically. K-Link will communicate with you by email or by posting notices to or changes in status within your account. You agree that all agreements, notices, disclosures, or other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.
7 Trading
All trading and transactions are governed by and subject to the terms of this Agreement.
8 Copyright Violations
8.1 Notice and Procedure for Making Claims about Intellectual Property
If you believe that your work has been copied in a way that constitutes a copyright infringement, or your intellectual property rights have been otherwise violated, please notify K-Link's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at koby.reed@klinkcms.com
Please provide our Agent with the following Notice:
Identify the material on the K-Link site that you claim is infringing, with enough detail so that we may locate it on the website;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you declaring under penalty of perjury that (1) the above information in your Notice is accurate, and (2) that you are the owner of the copyright interest or intellectual property involved or you are authorized to act on behalf of that owner; Your address, telephone number, and email address; and Your physical or electronic signature.
8.2 Future Violations
K-Link will remove the infringing posting(s) and will use reasonable efforts to assure that the reposting does not occur, subject to the procedures outlined in the Digital Millennium Copyright Act (DMCA).
9 Conduct
9.1 You agree not to submit, email, or otherwise make available Content:
That is unlawful, defamatory, or libelous;
That is adult in nature, or obscene in nature;
That impersonates any person or entity, including, but not limited to K-Link, an agent of K-Link, or falsely states or otherwise misrepresents your affiliation with a person or entity;
That is false, deceptive, misleading, or deceitful;
That infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
That disrupts the use of Service by excessive request to K-Link or other flooding attacks, or that otherwise negatively affects other users' ability to use K-Link; or
That employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of content transmitted through the service.
9.2 Additionally you agree not to:
Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the service - unless expressly permitted by K-Link in writing;
Submit the same or similar content or duplicate content;
Use or create any form of automated devise or computer program that enables the submission of data to K-Link in a way that circumvents the manual entry allowed by K-Link; or
Enter any invalid or incorrect information on the website or in your account.
10 Fees
All fee charges and other charges are reflected in a separate Fee Agreement.
11 Modifications to This Agreement
K-Link reserves the right, at our sole discretion, to alter, modify or otherwise change the terms and conditions of this Terms of Use at any time. Such modifications, alterations or changes shall become effective immediately upon posting thereof. You must review these agreements on a regular basis to keep yourself informed and apprised of any such changes.
12 Copyright
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of K-Link, is licensed to K-Link by a third party, and protected by the Untied States and international copyright laws. The compilation of all content on this site is the exclusive property of K-Link and protected by United States and international copyright laws. All software used on this site is the property of K-Link or its software suppliers and protected by United States and international copyright law.
13 Proprietary Rights
The Service is protected to the maximum extent permitted by copyright laws, patent laws, and international treaties. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of K-Link. You further agree not to reproduce, duplicate or copy Content from the Service without the express written consent of K-Link, and agree to abide by any and all copyright notices displayed on the service. You may not decompile or disassemble, reverse supplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. Although K-Link does not claim ownership of content that is submitted, you automatically grant, represent and warrant that you have the right to grant, to K-Link an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said content and to prepare derivative works of, or incorporate into other works, said content, and to grant and authorize sublicenses (through multiple tiers) or the foregoing. Furthermore, by submitting content to K-Link, you automatically grant K-Link all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the content on the service by any party for any purpose.
14 Trademarks
K-TEX, K-Tex, Klinkcms, Klinkcms.com, K-LINK, K-Link, K-Tex Technologies, LLC, K-Link Cotton Marketing System, graphics, logos, characters, page headers, button icons, scripts and service names are trademarks, registered trademarks or trade dress of K-Link. K-Link's trademarks and trade dress may not be used in connection with any product or service in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits K-Link. All other trademarks not owned by K-Link that appear are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by K-Link.
15 Patents
One or more patents may apply to this Site and to the features and series accessible via the Site, including without limitation: patent pending.
16 DISCLAIMER OF WARRANTIES
THIS SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY K-LINK OR ITS USERS ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU ARE FURTHER ADVISED THAT ANY OFFER THAT IS ACCEPTED BY THE SELLER IS SUBJECT TO REVOCATION FOR THE REASON THAT THE SELLER NO LONGER HAS THE ITEM HIMSELF. K-LINK AND ITS USERS MAKE NO REPRESENTATIONS OR WARRANTIES OR ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDING ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, UNLESS OTHERWISE SPECIFIED. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
17 LIMITATION OF LIABILITIES
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, K-LINK AND ITS USERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. K-LINK DOES NOT WARRANT THAT THIS SITE; INFORMATION, CONTENT MATERIALS, SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE; THEIR SERVERS; OR EMAIL SENT FROM K-LINK ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. K-LINK WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT INCIDENTAL PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. ANY USER WHO HAS A CLAIM AGAINST K-LINK'S DAMAGES ARE LIMITED TO THE FEES ACTUALLY CHARGED AND RECEIVED BY K-LINK AND TO NO OTHER DAMAGES. THEY BUYER ACKNOWLEDGES THAT THE BUYER IS NOT PAYING A FEE AND THEREFORE K-LINK WILL HAVE NO LIABILITY WHATSOEVER AS TO ANY DAMAGES TO THE BUYER.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATION ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IT IS K-LINK'S POSITION THAT THOSE LAWS WOULD NOT PROTECT YOU BECAUSE YOU HAVE AGREED THAT THE APPLICABLE LAW IS THE LAW OF THE STATE OF TEXAS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
18 Third Party Sites
This site might contain links to third party websites and services for third-parties ("third-party sites"). Such third-party sites are not under the control of K-Link and K-Link is not responsible for any third-party sites. You use all third-party sites at your own risk. When you link to a third-party site, the applicable third-party's terms and policies apply, including the third-party's data and gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any third-party sites.
For your convenience, the on-line service may provide links to other websites of other persons or entities ("third-party websites"); however, the third-party websites are not controlled by K-Link. Accordingly, K-Link makes no warranties or conditions to such third-party websites, has no responsibility for the contents of such third-party websites, and will not be liable for any loss or damages caused by your use of or reliance on such third-party websites. Your use of third-party websites is at your own risk. The inclusion on this site or other services of a link to a third-party website does not imply an endorsement by K-Link. When you access any of these third-party websites, please understand that if you visit third-party websites, then your rights and obligations while accessing and using those sites will be governed by the agreements and policies related to the use of those sites.
K-Link does not grant you any right, whether limited, nonexclusive, or personal license to create a hyperlink to K-Link's online services. To do so is a violation of your right to use this site and may result in the termination of your right to use this site.
19 Governing Law
By visiting K-Link you agree that the laws of the State of Texas, without regard to principles of conflict of laws, will apply to all legal matters and any dispute of any sort that might arise between you and K-Link or its affiliates.
20 Customer Responsibility for Taxes
The reporting and payment of any applicable taxes arising from the use of the service is your responsibility. You hereby agree to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with Payment Transactions.
21 Requesting Paper Copies
Communications will not be distributed in paper unless you contact us and request a paper version of a particular document. We reserve the right to charge you a handling fee for any notices that we physically mail to you at your request or because your e-mail addresses fail.
22 Indemnity
You agree to indemnify or hold K-Link, its offices, subsidiaries, affiliates, successors, assigns, directors, offices, agents, service providers, suppliers and employees, harmless from any claim or demand, including reasonable attorney fees and court costs, made by any third party due to or arising out of content you submit, post or make available through the service, your use of the service, your violation of the Terms of Use, your breach of any of the representations and warranties herein, or your violation of any rights of another.
23 License Agreement
Sellers:
The license agreement begins September 1st or any date after September 1st that Seller purchases the license, and such license is valid through August 31st of the following year. After August 31st then a new annual license fee is owed for each successive year that is purchased by the Seller. The Sellers are charged an annual license fee of $600.00 for two user ids. If the Seller wants more than two user ids, then the charge will be $75.00 per additional user.
Merchants:
The license agreement begins September 1st or any date after September 1st that Merchant purchases the license, and such license is good through August 31st of the following year. After August 31st then a new annual license fee is necessary for each successive year that is purchased by the Merchant. The Merchants, whether major or FOB, are charged an annual license fee of $150.00 for two user ids. If the Merchants want more than two user ids, then the charge will be $75.00 per additional user.
Buyers: The Buyers shall be billed the following sums per bale or any part of a bale, once the trade has been matched between the Buyer and the Seller on K-Link:
1. Each trade from the gin the Major Merchants shall pay the sum of $1.00 per bale.
2. Each trade from the gin the FOB Merchants shall pay the sum of $0.75 per bale.
3. Major Merchants who buy from FOB Merchants shall pay $0.75 per bale.
4. Major Merchants who buy from other Major Merchants shall pay $0.75 per bale.
But provided in the event a Seller or gin uploads a recap on the K-Link system, then later pulls such recap from the system and are not sold on the system, then the gin will owe $1.00 per bale. Provided; however, if the gin mistakenly uploads the bales onto the system and those bales have already been sold (either by spot sale or forward contract), then the $1.00 per bale will be waived if proof of the sale is furnished to K-Link.
Invoices will be completed on the last business day of each week and will be sent electronically to the merchants. The merchants are responsible for paying such sums within 7 calendar days, and shall be paid by ACH to an account designated by K-Link.
24 Rules for Trading
The bids that are made by the Buyer are based off cotton #2 (ICE Futures) for the corresponding trading month used and designated by the Buyer. The gin screen as shown on K-Link may be a delayed quote for ICE Futures or a different quote for ICE Futures than used by the Merchant's ICE Futures quote. Therefore, the Seller must confirm with the Buyer the current market price used by the Buyer. Cotton trades may be made on K-Link during normal business hours for both Buyer and Seller. Trades may not be exercised or made on weekends or holidays; provided however, the Buyer always has the option not to purchase cotton when ICE Futures' market is closed.
The bids that are made on K-Link are in basis point terms, and 100 points is equal to $0.01 per pound equal to, greater than, or less than the ICE Futures month designated by the Buyer. The bids are subject to confirmation by the Buyer, and are good until filled, cancelled, or modified, whichever occurs first. The Sellers have the right to remove their recap and cotton offered for sale at any time prior to the contract of the bid being accepted, but not after the Seller accepts the bid.
Once the Seller clicks the accept button, then the K-Link system will provide the Buyer with a notice that the gin has accepted such bid. Then the Buyer shall enter the confirmation of the basis, market price, and purchase order number.
Then Seller will send to the Buyer (1) an invoice for the Seller's commission, (2) an invoice for the cotton (can be faxed or emailed by the Seller directly to the Buyer), and (3) the Seller will also send the EWR electronically from the Seller to the Buyer.
25 Violations of any Rules or Failure to Perform as Seller or Buyer Under Your Respective Obligations Subject You to any of the Following Action at the Sole Discretion Of K-Link
a. Removal from K-Link and no further right to use K-Link; or
b. Suspension for any period of time as determined in K-Link's sole discretion and damages to K-Link.
By signing this Agreement, you understand that K-Link is not a party to your transaction to sell or buy cotton. You, as Seller, or you, as Buyer, have entered into the terms of your performance of the contract or are obligated under your terms to perform, and failure to perform is governed by your agreement as to damages or other remedies for breach. You agree to indemnify and hold harmless K-Link from any action brought by you or another party to the transaction claiming K-Link owes you any damages, which indemnification includes attorney fees, court costs, expert witness fees, and all other charges incurred in defending such action or actions.
26 Entire Agreement
This Agreement and Terms of Use constitutes the entire agreement and understanding of the Parties in respect of the subject matter hereof and supersedes all prior understandings, agreements or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof. Provided; however, K-Link can make changes to this agreement, at K-Link's sole discretion by posting the same on its website, and emailing such changes to you at your last email address provided, and the same shall be binding on you as a User thirty (30) days after such changes are posted and emailed. If you continue to use the website, then you will be bound by the changes that have been made. If you do not want to continue to use the website, then stop using it because the changes will be binding on you, including any changes to the fees charged in this agreement.
