TERMS AND CONDITIONS
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- About the Site
1.1 Thank you for using our website located at www.jumpingjack.com.au (‘Site’). This Site is operated by Jumping Jack (ABN 88 995 625 377) (‘Jumping Jack’).
1.2 Jumping Jack is an online marketplace for goods, such as pre-loved baby apparel, kids and maternity clothing, and accessories (‘Products’) to facilitate interactions between:
(a) people looking for independent suppliers of Products (the ‘Buyers‘); and
(b) independent suppliers selling Products (the ‘Suppliers‘),
making it easier for the Buyer and the Supplier to locate, communicate with each other, arrange payment and deliver the Products in a fast and secure manner (the ‘Services‘).
1.3 As part of the Services, Jumping Jack also welcomes consignors who send us their Products to sell for profit or for charity (‘Consignors’). Jumping Jack will list the Products consigned to us on the Site and sell these Products on behalf of the Consignor.
1.6 We may update these Terms from time to time. Any changes to these Terms will be effective from the date published on our Site.
1.7 By using the Site, you agree that you are bound by these Terms. If you do not agree to these Terms you must not use the Site or any part of our Services.
2. Acceptance of the Terms
2.1 You accept the Terms by registering for the Services and/or making any payment as required under the Terms for use of our Services. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you by Jumping Jack in the user interface provided on our Site.
3. The Services
3.1 In order to access the Services, both the Buyer and the Supplier are required to register for an account through the Site (the ‘Account‘).
3.2 As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(b) email address;
(c) preferred username;
(d) mailing address;
(e) telephone number;
(g) date of birth;
(h) other information as applicable to set up and administer your Account to access the Services.
3.3 For Consignors, you will be required, as part of your registration process, to fill in a form titled a ‘Clean Out Bag’ (‘Bag’). The Bag will require you to provide various information, including the following:
(a) name, email, phone and address;
(b) your PayPal or bank account details;
(c) whether you wish to sell your items and have the proceeds paid into your PayPal/ bank account or have the proceeds donated to a charity partner (Variety, The Children’s Charity – Victoria or The Global Women’s Project);
(d) the number of clothing items available for sale, their corresponding descriptions and sizes;
(e) whether the clothes are new or in excellent used condition;
(f) whether the clothes are freshly washed and ironed, and free from any stains, rips, pulls, holes, pilings, etc.; and
(g) other information we ask of you to enable your access to the Services.
3.4 You warrant that any Registration Information you give to Jumping Jack in the course of completing the registration process will always be accurate, correct and up to date.
3.5 If your Registration Information changes, you must promptly update your Account to reflect those changes.
3.6 Once you have completed the registration process, you will be a registered member of the Site and agree to be bound by the Terms.
3.7You may not use the Services and accept our Terms if:
(a) you are not of legal age to form a binding contract with Jumping Jack; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4. Your obligations as a Supplier, Consignor or Buyer
4.1 As a Supplier, Consignor or Buyer, you agree to comply with the following:
(a) you will not share your profile with any other person;
(b) you will use the Services only for purposes that are permitted by:
i. the Terms; and
ii. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(c) you have sole responsibility for protecting the confidentiality of your user name, password and/or email address (‘Login Details’). Use of your Login Details by any other person may result in the immediate suspension or cancellation of the Services;
(d) any use of your Registration Information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Jumping Jack of any unauthorised use of your Login Details or any breach of security of which you have become aware;
(e) you must not expressly or impliedly impersonate another person or use the profile or password of another person at any time;
(f) any material that you broadcast, publish, upload, transmit, post or distribute on the Site, including images and details about any Products listed for sale (your ‘Content‘) will not infringe the intellectual property rights of any other third party and will always be accurate, correct and up to date;
(g) you warrant that you are the sole and exclusive owner of any Content you upload to the Site or otherwise have all rights, licences, permissions, consents and releases and approvals necessary to use the Content and to grant Jumping Jack a licence to use the Content in accordance with these Terms;
(h) you agree not to harass, defame, impersonate, stalk, or threaten any other user of the Site (where interaction with other Suppliers, Consignors or Buyers is made available to you);
(i) access and use of the Site is limited, non-transferable and allows for the sole use of the Site by you for the purposes of providing the Services;
(h) you will not use the Services or the Site in connection with any commercial endeavours except those that are specifically endorsed or approved by Jumping Jack or as otherwise provided for in these Terms;
(k) you will not use the Services or Site for any illegal and/or unauthorised use which includes collecting email addresses of Suppliers by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Site;
(l) you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from profiles without notice and may result in termination of the Services; and
(m) you acknowledge and agree that any automated use of the Site or its Services is prohibited.
4.2 We reserve the right in our sole discretion to deny anyone access to an Account and the Services.
4.3 If the use of your Account breaches these Terms or shows signs of fraud, abuse or suspicious activity, Jumping Jack may cancel any listings for Products associated with your Account. In addition, we may:
(a) suspend your Account; or
(b) cancel your Account.
5. Use of the Site and Services
5.1 You agree that Jumping Jack:
(a) will not be liable to any person in relation to the supply of or purchase of any Products advertised or made available on our Site including for any loss or liability;
(b) is not responsible for the enforcement of any contractual obligations arising out of a contract for the sale or supply of any Products between Buyer and Supplier and Jumping Jack will have no obligation to mediate any disputes between the parties to any such contract;
(c) is not responsible for the accuracy of information including any Registration Information or Content provided by Buyer or Supplier on our Site;
(d) cannot be held responsible for the actions or representations of Buyer or Supplier, either on or off the Site; and
(e) cannot guarantee that any information provided by a Buyer or Supplier is true, accurate, complete, current and not misleading or deceptive.
5.2 Buyer agrees to make their own enquiries to verify information provided by a Buyer or Supplier and to assess the suitability and quality of any Products offered by a Supplier.
6. Purchase of Products
6.1 As a Supplier, you can advertise and promote a Product by publishing images of the Product that you wish to sell. Images must be of the actual item or items being sold in their current condition.
6.2 You agree as a Supplier that every Product you advertise for sale on the Site is available at the time it is listed and represents a bona fide offer for sale. If for whatever reason the Product becomes unavailable before it is purchased by a Buyer, you must remove it from the Site immediately. You agree that you will honour the contractual commitment that you make to a Buyer or Supplier in respect of the purchase or sale of a Product.
6.3 Products advertised for sale on the Site must be sold and purchased using the online payment methods made available on the Site. You must not make substitute arrangements either as a Buyer or as a Supplier to use an alternative payment method that is not made available on our Site. Failure to comply with this clause may result in the suspension or cancellation of your Account.
6.4 You must hold an active PayPal account to receive payments for the supply of Products through the Site.
6.6 If you (as a Buyer, Supplier, or Consignor) are using the PayPal account of a third party, you warrant that you have been given permission to use that account in relation to any transaction processed through the Site.
6.7 You acknowledge that any agreement formed for the supply and purchase of a Product is solely between the Buyer and Supplier. Any disputes arising from a transaction on the Site should be taken up directly with the applicable Buyer or Supplier. If the dispute cannot be resolved between the Buyer and Supplier, the matter may be referred to Jumping Jack support under the terms for such disputes.
6.8 You agree that Jumping Jack is not an agent of either the Buyer or Supplier, nor is it a Supplier itself. Jumping Jack is an online market platform that connects Suppliers with Buyers for the purpose of creating a marketplace for the purchase and sale of various Products. As such, Jumping Jack has no control over Buyers or Suppliers and does not give any guarantee or warranty in respect of the quality, fitness for a purpose, suitability, safety, genuineness or legality of any Products sold via the Site or that any Products sold will match their descriptions or photos. Any requests for returns or refunds should be directed to the Supplier of the Products. Jumping Jack does not guarantee that a Supplier will issue a refund or return to the Buyer.
6.9 You agree that you, as a Supplier, are responsible for shipping the Product to the Buyer. Jumping Jack is not responsible for picking up, transporting, delivering or otherwise dealing with Supplier’s shipment. Jumping Jack will not be liable if a Product shipped is delayed or lost in transit. It is the Seller’s responsibility to get in touch with the carrier and the Buyer to resolve these problems.
6.10 As a Supplier, your use of any carrier is subject to, and you are responsible for compliance with, all applicable terms and conditions of the carrier. Supplier is responsible for all local and international shipping and customs laws and regulations including any fees and duties.
6.11 You agree that Jumping Jack will not be responsible for any local customs charges, import taxes or duties or any similar charges or fees related to your shipments.
7. Consignment Services
7.1 Jumping Jack will use commercially reasonable efforts to sell your Products on consignment.
7.2 As a Consignor, you can sell Products for profit or have your proceeds donated to any of our following charity partners:
(a) Variety, The Children’s Charity – Victoria, or
(b) The Global Women’s Project.
7.3 Consignor warrants that the Products being sold are owned by the Consignor or the Consignor has permission to list the Products for sale.
7.4 Consignor agrees that Jumping Jack has the exclusive right to market and sell the Products on consignment.
7.5 Consignor agrees that the Products will be listed on the Site and will be sold, packed and shipped to Buyer by Jumping Jack on Consignor’s behalf.
7.6 When a Consignor successfully signs up for a Bag, Consignor is required to post the Products to Jumping Jack. Consignor is responsible for any packaging and postage costs used to post the consigned Products. Consignor will be responsible for posting the bag to Jumping Jack via a local Australia Post outlet or post box. Consigner will be responsible for packaging the Products safely for postage. Jumping Jack will not be held accountable for items damaged or missing via post.
7.7 Upon receipt of the Products, Jumping Jack will sort the Products based on our cataloguing system. Each Product will undergo a complete quality and condition check to determine if any additional washing or treatment is required.
7.8 You agree that Jumping Jack reserves the right in Jumping Jack’s sole discretion to determine, based on quality assessment, whether a Product is or is not accepted for resale, within 14 days upon receipt of the Products. Unless otherwise informed by Jumping Jack, considering the amount and quality of Products received for consignment and any other factors in Jumping Jack’s sole discretion, Consignor accepts that any Products processed by Jumping Jack that are not accepted for resale, will be donated by Jumping Jack to a local charity or sent for textile recycling.
7.9 Jumping Jack will steam/ iron, sort and photograph each Product to be listed on the Site. For any Product that requires additional washing, repair and treatment, Jumping Jack will take an additional $3.00 fee per item from the proceeds of any sales of the Products.
7.10 Jumping Jack will evaluate the consigned Products in its sole discretion as to their authenticity, quality and value and reserves the right to set the sale prices on the consigned Products. In general, the price of the consigned Products will depend on the price of other comparable items, and on the Product’s condition. Markdowns/discounts may be applied at our discretion during the time that the Product is listed for sale.
7.11 Any quality assessment made in these Terms by Jumping Jack, excludes from the responsibility of Jumping Jack an assessment of Products in relation to product safety standards or safety defects in the Products. Product safety standards and safety defects are the responsibility of the Supplier, Consignor or any seller, retailer, manufacturer or importer who sold or supplied the relevant products to consumers. The role of Jumping Jack is only as a facilitator to connect users on the Site such as Suppliers and Buyers.
7.12 Consignor accepts that while Jumping Jack agrees to use commercially reasonable efforts to obtain a sale of the consigned Products, there is no guarantee a sale will occur.
7.13 The consigned Products and title therein shall remain as Consignor’s property until sold to Buyer. Consignor acknowledges that the delivery of the Products to Jumping Jack is a consignment and not a sale of the Products.
7.14 Consignor agrees that Products will be advertised and sold under the Jumping Jack banner and packaging, however the consigned products and title therein will remain the property of the Consignor until sold to the Buyer.
7.15 Products may be listed individually or as a bundle. Products may also be listed in an outfit, bundle or pack made up of items from multiple Consignors.
7.16 Products will be listed on the Site for a consignment period of 274 calendar days (‘Consignment Period’). After the Consignment Period, Products will either be returned to the Consignor at their sole expense, donated to charity, or the selling period will be extended by mutual agreement between Jumping Jack and the Consignor. If Jumping Jack cannot get in touch with the Consignor after two (2) attempts, the Consigner agrees that the Products will either be donated, or the Consignment Period will be extended at Jumping Jack’s sole discretion.
7.17 When a Product on consignment sells, Jumping Jack will notify the Consignor by email.
7.18 Consignor will be paid up to 45% of the actual selling price of Consignor’s listed Products net of GST, the proceeds of which are paid into Consignor’s nominated PayPal or bank account. The percentage of the sales price payable to the Consignor will depend on the quality of the Products, determined solely in the discretion of Jumping Jack. Payment to the Consignor will be made every two (2) months to allow flexibility in time for any refund or exchange under our Returns and Refund Policy. Jumping Jack will not be responsible for delayed payment caused by the provision of incorrect bank or PayPal details. If you have provided incorrect details, we may not be able to recover these funds and take no responsibility for lost funds.
7.19 All sales of consigned Products are subject to our Return and Refund Policy under the ‘Consignment Product’ section.
7.20 Consignor will continue to have title to each item of the Consigned Products until that item is sold. Jumping Jack does not assume responsibility, nor do we reimburse Consignor for loss or damage to the Products due to fire, theft or for any other reason. All risk of ownership of the consigned Products shall stay with the Consignor.
7.21 Consignor agrees that Jumping Jack shall have the exclusive right to determine the business operation and management of supply of Products on consignment.
7.22 Consignor is responsible for paying any taxes associated with using the Services and making any sales through the Site. In the event that Jumping Jack becomes liable to pay or collect any taxes on account of a Consignor, then Consignor agrees to indemnify Jumping Jack for any losses it incurs in respect of Supplier’s tax obligations.
7.23 Subject to any rights you may have under any law, if any product is sold with an accompanying manufacturer’s warranty, Jumping Jack take no responsibility for the content, fulfilment or enforcement of that manufacturer’s warranty. It is the Buyer’s responsibility to contact the relevant manufacturer in relation to the warranty.
7.24 To the extent permitted by law, Jumping Jack does not provide any representation or warranty in relation to any manufacturer’s warranty that accompanies a product. In particular, we do not represent that the manufacturer’s warranty is compliant with the Australian Consumer Law. Any rights that you may have in respect of the manufacturer’s warranty are against the manufacturer and not us.
8. Commissions from the Sale of Products (for Suppliers)
8.1 As a Supplier, you are liable for any PayPal transaction fees (‘Transaction Fees’) and our platform fees (‘Commission’) arising out of all sales made using the Services.
8.2 The current Commission rate is fifteen percent (15%) of the final sale amount, excluding postage. Jumping Jack reserves the right to vary the Commission rate at any time and will provide notice of any variations by posting on the Site.
8.3 The commission will be automatically deducted from the final sale amount, in respect to any successful sales using the Services. The Supplier will receive a daily payout of revenue (less commission value) for all successful sales made using the services in the previous 24-hour time period. Failure to pay any overdue Commission fees may result in the suspension or termination of your Account. Any resulting suspension or termination of your Account will not release you from any debt owed to Jumping Jack.
8.4 Jumping Jack will provide the Supplier with an invoice detailing any Commissions deducted from Suppliers’ successful sales using the Services.
8.5 Supplier is responsible for paying any taxes associated with using the Services and making any sales through the Site. In the event that Jumping Jack becomes liable to pay or collect any taxes on account of a Supplier, then Supplier agrees to indemnify Jumping Jack for any losses it incurs in respect of Supplier’s tax obligations.
9. Donation Payments to our Charity Partners
9.1 As a Supplier or a Consignor, you can elect to make a monetary donation in respect of the proceeds made from a sale to the charity partners listed on our Site. Where an election to donate is made available as part of the sale of a Product, and you give a donation, this value will be reflected in your invoice.
9.2 Jumping Jack is not an affiliate or beneficiary of any charity listed on the Site. All donations made through the Site to a charity are paid directly to Jumping Jack, which funds are then transferred monthly to the respective charities account with the details of the Supplier or Consignor making the donation. The Supplier or Consignor will receive a tax invoice for donations above $2.00 which must be provided directly by the applicable charity. All donations made to a charity will be subject to the standard terms and conditions of the applicable charity.
9.3 Jumping Jack does not provide refunds in respect of any donations made through the Site to our charity partners. Any requests for refunds should be directed to the applicable charity partner. We do not give any guarantee or warranty that a refund will be issued in respect of any donation given to our charity partners.
10. Copyright and Intellectual Property
10.1 In these Terms:
“Intellectual Property (Rights)” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.
10.2 The Site, the Services and all of the related Products of Jumping Jack are subject to copyright. The material on the Site is protected by copyright under the laws of Australia and through international treaties.
10.3 Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Site (including but not limited to text, graphics, logos, button icons, video images, audio clips, Site, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Jumping Jack or its contributors.
10.4 All trademarks, service marks and trade names are owned, registered and/or licensed by Jumping Jack, who grants to you a worldwide, non-exclusive, royalty-free, revocable license to:
(a) use the Site pursuant to the Terms;
(b) copy and store the Site and the material contained in the Site in your device’s cache memory; and
(c) print pages from the Site for your own personal and non-commercial use.
10.5 Jumping Jack does not grant you any other rights whatsoever in relation to the Site or the Services. All other rights are expressly reserved by Jumping Jack.
10.6 Jumping Jack retains all rights, title and interest in and to the Site and all related Services. Nothing you do on or in relation to the Site will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
10.7 You may not, without the prior written permission of Jumping Jack and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Site, which are freely available for re-use or are in the public domain.
10.8 Where you broadcast, publish, upload, transmit, post or distribute your Content on the Site, then you grant to Jumping Jack a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change your Content.
10.9 The Site or any part of it (including, without limitation, any content or images) may not be copied, reproduced, adapted, publicly displayed, duplicated, translated or distributed in any way (including mirroring) to any other device, server, site or other medium for publication or distribution, without our express prior written consent. Subscribers must not infringe the Intellectual Property Rights owned in or licensed via our Services from unauthorised use, copying, reproduction, lending, reselling, manipulation, disassembly, distribution or publication.
10.10 All Intellectual Property including any trade marks, service marks, trade names and any other proprietary designations are owned, registered or licensed by Jumping Jack. Any other trade marks, service marks, logos, trade names and any other proprietary designations are the trade marks or property of the respective parties.
10.11 The obligations accepted by Buyers, Suppliers and Consignors under this clause survive termination or expiry of these Terms.
12. Warranties and Representations
12.1 To the maximum extent permitted by law, we exclude all representations and warranties relating to the subject matter of these Terms, our Site and the use of our Services. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
12.2 Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) Jumping Jack will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
12.3 Use of the Site and the Services is at your own risk. Everything on the Site and the Services is provided to you without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Jumping Jack make any express or implied representation or warranty about the Services or any Products or Services (including the products or Services of Jumping Jack) referred to on the Site. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Site, the Services, or any of its Services related Products (including third party material and advertisements on the Site);
(c) costs incurred as a result of you using the Site, the Services or any of the Products of Jumping Jack; and
(d) the Services or operation in respect to links which are provided for your convenience.
12.4 You agree that Jumping Jack operates to connect Suppliers and Buyers to facilitate the provision of the Services. Jumping Jack is not a supplier of any products or services that Suppliers offer on this Site nor is Jumping Jack a party to any contracts entered into between Suppliers and Buyers.
12.5 Jumping Jack makes no warranty as to the truth, suitability, quality or accuracy of any Content or information provided by Suppliers or Buyers, including, but not limited to:
(a) the ability of the Supplier to complete a supply of the Products offered to a Buyer; and
(b) product safety standards of any Products.
12.6 Jumping Jack does not make any representation or warranty with respect to or endorse any Supplier as to their identity, background or ability to supply the Products listed on the Site. Any review, feedback or rating of a Supplier is not a guarantee of the outcome of the Products offered by that Supplier and Jumping Jack will have no responsibility or liability of any kind for the performance of the Supplier including as to product safety standards and product recalls. Any use of or reliance on a Supplier to complete a transaction is solely at Buyer’s risk.
12.7 This clause survives the termination or expiry of these Terms for whatever reason.
13. Limitation of Liability
13.1 Jumping Jack ‘s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
13.2 To the extent permissible at law, you agree that we, our affiliates or subsidiaries, or any of our directors, officers, employees, partners, agents, contributors, and licensors shall not be liable to you or any third party for any:
(a) loss of profit or opportunity;
(b) damage to goodwill or business reputation and any other intangible loss; and
(c) special, direct, indirect, incidental, punitive, exemplary or consequential damages whatsoever or any other losses, costs or expenses of any kind, including loss of data, legal fees, expert fees, cost of procuring substitute services, or any other disbursements,
whether arising, directly or indirectly, from your reliance on, access to, use of, or inability to access or use, the Site and Services provided therein, or through downloading of any materials, data, text, images, video or audio from the Site, whether in common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
13.3 This clause survives the termination or expiry of these Terms for whatever reason.
14. Termination of Contract and Accounts
14.1 If you want to terminate the Terms, you may do so by providing Jumping Jack with 30 days’ notice of your intention to terminate by sending notice of your intention to terminate to Jumping Jack via the ‘Contact Us’ link on our homepage.
14.2 You may close your Accounts with Jumping Jack at any time by contacting us via the ‘Contact Us’ link on our homepage, or alternatively where this option is made available to you in the account settings. Termination of your Account does not affect the survival of these Terms.
14.3 Jumping Jack may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) Jumping Jack is required to do so by law;
(c) Jumping Jack is transitioning to no longer providing the Services to Suppliers in the country in which you are resident or from which you use the service; or
(d) the provision of the Services to you by Jumping Jack is, in the opinion of Jumping Jack, no longer commercially viable.
14.4 Subject to local applicable laws, Jumping Jack reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Site or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Jumping Jack ‘s name or reputation or violates the rights of those of another party.
14.5 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Jumping Jack have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
15.1 In this clause, the following words shall mean:
‘Claim’ includes any demand, claim, action, proceeding, Loss, damages, costs, expenses,
requisition, objection, alleged right of indemnity incurred or suffered by, or brought or made
or recovered against a matter, no matter how arising (whether or not presently ascertained)
in the immediate future or contingent (whether criminal or civil, in contract, tort or otherwise).
‘Liability’ means any debt, obligation, cost (including legal costs, deductibles or increased
premiums), expense, Loss, damage, compensation, charge or liability of any kind, including
those arising from third party Claims, those that are prospective or contingent and those the
amount of which is not ascertained or ascertainable, and whether arising under breach of
contract, in tort (including negligence), restitution, pursuant to statute or otherwise at law or
‘Loss’ means any cost, expense, loss, damage or Liability whether direct, indirect or
consequential (including pure economic loss), present or future, ascertained or
unascertained, actual, prospective or contingent, or any fine or penalty and includes legal
15.2 You agree to indemnify Jumping Jack, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, Claims, demands, Liabilities, costs, expenses, Loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Site and Services or attempts to do so; and/or
(c) any breach of the Terms.
15.3 You hereby indemnify us, and undertake to keep us indemnified, against any and all Claims, Losses, damages, costs, Liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute) incurred or suffered by us and arising directly or indirectly out of your use of our Site or any breach by you of any provision of these Terms.
15.4 Jumping Jack hereby expressly disclaims, and you hereby expressly release Jumping Jack from, all Liability, Claims, suits, injuries, Loss, harm or damages arising from or related to our Services or your interactions or dealings with Buyers or Suppliers.
15.5 This clause survives the termination or expiry of these Terms for whatever reason.
16.1 Without prejudice to our other rights under these Terms, if you breach these Terms in any way, or if we reasonably suspect that you have breached these Terms in any way, we may:
(a) suspend your access to our Site and Services (including your Account);
(b) permanently prohibit you from accessing our Site and Services; or
(c) delete your Account on our Site.
16.2 Where we suspend or prohibit or block your access to our Site and Services, you must not take any action to circumvent such suspension or prohibition or blocking.
17. Dispute Resolution
17.1 Suppliers and Buyers are solely responsible for interactions and disputes with each other.
17.2 Jumping Jack reserves the right, but has no obligation, to monitor disputes between Suppliers and Buyers although may involve itself in such a dispute for the purpose of improving the user experience of the Site and Services.
17.3 If a dispute arises out of or relates to the Terms as between Jumping Jack and a Supplier or Buyer, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(a) Compulsory process. A Party shall not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has complied with this clause.
(b) Notification. A Party claiming that a Dispute has arisen shall notify each other party to the Dispute giving details of the Dispute.
(c) Initial period – efforts to resolve Dispute. During the 30-day period after a notice is given (or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each Party to the Dispute (Disputant) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.
(d) Mediation. If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute shall be referred for mediation, at the request of any Disputant, to:
i. a mediator agreed on by the Disputants; or
ii. if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the Parties must submit the dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.
(e) Role of mediator. The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
(f) Information. Any information or documentation disclosed by a Disputant under this clause shall be kept confidential and may not be used except to attempt to resolve the Dispute.
(g) Costs of mediation. Each Disputant shall pay its own costs of complying with this clause. The Disputants shall pay equally the costs of any mediator engaged.
(h) Location, timing and attendance. The mediation will be held in Melbourne, Australia, within 30 days after expiry of the Initial Period. Each Disputant agrees to attend the mediation by a representative having full authority to resolve the dispute. At the mediation each Disputant may be represented by one or more legal representative.
(i) Failure to resolve. If the dispute fails to resolve at mediation or if one of the Disputants fails or refuses to attend the mediation, the mediator will be requested to inform each Disputant in writing that the mediation has been terminated without resolution (Mediation Termination Notice). Upon receipt of Mediation Termination Notice, the dispute resolution process will be terminated. A party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, after receipt of Mediation Termination Notice.
(j) Confidentiality. All communications concerning negotiations made by the Disputants arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable law of evidence.
18. Third Party Links
The Site may contain links and other pointers to other websites or applications operated by third parties. We do not control these linked websites and are not responsible for the contents of any linked website. The links are provided solely for your convenience and do not indicate, expressly or impliedly, any endorsement by us of the website or the products or services provided at those websites. Your access to any such advertisement or link is entirely at your own risk. You should contact the relevant third-party directly to enquire on that information prior to entering into a transaction in relation to the third-party products and services.
19. Feedback and Authorisations
Your feedback is important to us and our Community. Jumping Jack welcome and encourage you to provide feedback, reviews, comments and suggestions for improvements to the Site and our Services (‘Feedback’). You may submit Feedback by contacting us using the contact details provided below.
20. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
22. How to Contact Us
You can contact us:
(a) using our support page provided on our Site located at <www.jumpingjack.com.au>; or
(b) by email at email@example.com
© 2020 Jumping Jack. All Rights Reserved.
Terms last updated 8 January 2021.