1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
- CHANGES TO TERMS
Jindilli may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you. Jindilli also reserves the right to modify these Terms at any time. When we make changes to these Terms, we will revise the “Last updated” date at the top of these Terms and we will notify you of the changes by prominently posting a notice of such changes on the Site. We encourage you to review these Terms whenever you visit the Site. By continuing to access and use the Site after any such changes have been posted, you are indicating your acceptance of such changes, even if you have not reviewed the changes.
- PERSONAL INFORMATION/PRIVACY
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products. Jindilli reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that Jindilli uses a third party payment processing service to process orders and bill fees to your credit card. Jindilli’s Privacy Policy, (the “Privacy Policy”), which can be viewed by clicking here, explains Jindilli’s practices about collecting, using and disclosing personal information. You hereby agree that we may use your personal information in accordance with the terms of the Privacy Policy.
2 – ELIGIBILITY; USE OF THE SITE; PASSWORD RESTRICTED AREAS OF THE SITE; GENERAL USE RESTRICTIONS
- ELIGIBILITY
By using the Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into these Terms. Further, you represent, acknowledge and agree that: (a) all account registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information and keep such information up-to-date; and (c) your use of the Site does not violate any applicable laws, rules or regulations.Jindilli may terminate these Terms and your use of the Site without notice if Jindilli, in its sole discretion, believes that you are under the age of 13 using the Site and the Services on the Site.
- USE OF THE SITE; PASSWORD RESTRICTED AREAS OF THE SITE
You need not register with Jindilli to use the Site. However, in order to access the password-restricted Professionals area of the Site, and to place an order for the purchase of wholesale Products, you must register with Jindilli for an account.
If you desire to register for an account with Jindilli, you must submit the following information during the account registration process on the Site: name, email address, telephone number, job title, business name, and business address (and billing/shipping address if different from business address). You will also be required to create a password for your account on the Site (“Password”) during the account registration process. Jindilli agrees to use your personal information submitted during the account registration process in accordance with the terms of Jindilli’s Privacy Policy.You are responsible for maintaining the confidentiality of your Password, and you are responsible for all activities that occur using your Password. You agree not to share your Password with anyone not authorized to use it, let anyone else access your Password or do anything else that might jeopardize the security of your Password. You agree to notify Jindilli if your Password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your Password, or if you know of any other breach of security in relation to this Site.By using this Site, you represent and warrant that all the information that you provide when registering for an account and otherwise through the Site is accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting Jindilli using the contact information at the end of these Terms requesting that we make the change(s).
- Jindilli provides content through this Site and information and materials that are shipped with the Products. Certain content, information, documents, products and services provided on and through this Site and/or with the Products, including logos, graphics and images that are not Submissions (as defined below) (collectively, “the Materials”) are provided to you by Jindilli and are the copyrighted and/or trademarked work of Jindilli or Jindilli’s contributors.
Jindilli grants you a limited, personal, non-exclusive and non-transferable license to use and to display and to make one copy of the Materials and to use the services and this Site solely for your personal use. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of these limited licenses, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to this Site or any Materials.All Materials and services provided on or through the Site are provided by Jindilli in the English language only. You agree that you have read and understand these Terms and the information and materials that are shipped with the materials with the products that are provided in the English language.
- BLOCKING OF IP ADDRESSES
In order to protect the integrity of the site and all activities thereon, Jindilli reserves the right at any time in its sole discretion to block visitors from certain IP addresses from accessing the Site.
3 – TERMS OF SALE; REFUND POLICY; ELECTRONIC COMMUNICATIONS
- PRICING
PRICES AND AVAILABILITY OF THE PRODUCTS AND SERVICES LISTED ON THE SITE ARE SUBJECT TO CHANGE WITHOUT NOTICE. The prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States.You agree to pay all fees or charges to your account based on Jindilli’s fees and billing terms in effect as shown on the pricing and payment page. You will be responsible for paying any and all applicable sales and use taxes for your purchase of the Product based on the address that you provide as the shipping address with your order, and you authorize Jindilli or the third party payment processing company that we engage to charge your credit card or debit card for all such taxes.If you do not pay on time or if your credit card or debit card on file in your account cannot be charged for any reason, Jindilli reserves the right to either suspend or terminate your access to your account and terminate these Terms. You are expressly agreeing that Jindilli or the third party payment processing company that we engage is permitted to bill you for the applicable fees, any applicable taxes and any other charges that you may incur in connection with your use of this Site and purchase of Products from the Site and the fees will be billed to your credit card or debit card on file in your account on the Site. If you have a balance due on any account, you agree that Jindilli may charge such unpaid fees to your credit card or debit card on file or otherwise bill you for such unpaid fees.Whilst Jindilli strives to provide accurate product and pricing information, pricing or typographical errors may occur. In the event a product or service is listed at an incorrect price due to a typographical error, or due to any other reason, Jindilli shall have the right to refuse or cancel any order placed for such product or service at the incorrect price, even if the order has been confirmed and/or your credit card has been charged. In the event that an item is mispriced, Jindilli may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. If your credit card has already been charged for the purchase and your order is cancelled, we shall promptly issue a credit to your credit card account in the amount incorrectly charged.
- PAYMENT METHODS
Jindilli accepts credit card and debit card payments only. We will charge your credit card at the time each applicable Product is shipped. When the Product is not available to ship for more than 20 days, the product will be on back order. At that time, Jindilli will announce the expected ship date on the Jindilli shopping site. If you choose to place an order while a product is on back order, Jindilli will charge your credit card at the time the order is placed. This will ensure that your order will ship as soon as the product is back in stock. If during this period you decide to cancel your order, you can do so for a full refund. You can also wait to place an order when the Product is back in stock on the shopping page, however, if there is considerable demand during a back order period, supplies may be limited. All orders will be processed in the order they are received at Jindilli. All sales and payments will be in US Dollars.
- PRODUCT DELIVERY AND ACCEPTANCE
We (or the third party fulfillment company that we engage, as applicable) will (i) ship the Products that you purchase as soon as possible after the applicable Product becomes available for shipment, and (ii) provide an e-mail notice to you when the Product has been shipped. Information on shipping costs and shipping options can be found on Jindilli’s Shipping Policy (the “Shipping Policy”), which can be viewed by clicking here. All Products shipped to customers will be deemed accepted upon delivery.Please note that there may be certain orders that Jindilli is unable to accept and must cancel. Jindilli reserve the right, at its sole discretion, to refuse or cancel any order for any reason. Jindilli reserves the right, at its sole discretion, to limit the quantity of items purchased per person, per household or per order. These restrictions may be applicable to orders placed by or using the same online account, the same credit card, and also to orders that use the same billing and/or shipping address. Jindilli will provide notification to the customer should such limits be applied.Some situations that may result in your order being cancelled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or concerns regarding suspected fraud. Jindilli may also require additional verifications or information before accepting any order. Jindilli will contact you if all, or any portion of your order, is cancelled or if additional information is required to accept your order. If your order is cancelled after your credit card has been charged, Jindilli will issue a credit to your credit card in the amount of the charge.Jindilli does not sell products for children, but it sells them to adults, who can purchase with a credit card. If you are under 18, you may use our Site only with involvement of a parent or guardian. Jindilli reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders at its sole discretion.
- REFUND POLICY
You may review information about Jindilli’s refund policy on the Site in the Jindilli Returns and Exchanges Policy. Please click here to view.
- ELECTRONIC COMMUNICATIONS
By using the Site and/or the services provided on or through the Site, you consent to receiving electronic communications from Jindilli. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or services provided on or through the Site. These electronic communications are part of your relationship with Jindilli. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
4 – SWEEPSTAKES, CONTESTS, AND SIMILAR PROMOTIONS
Sweepstakes, contests, or similar promotions made available through the Site (if any) will be governed by specific rules that are separate from these terms. By participating in any such sweepstakes, contest, or promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein and which, in addition to describing such sweepstakes, contest, or promotion, may have eligibility requirements, such as specific age or geographic restrictions. It is your responsibility to read the applicable rules to determine whether or not your participation, registration and/or entry are valid. You agree to read the applicable rules, which are linked from the particular activity, and to review Jindilli’s Privacy Policy which, in addition to these terms, governs any information you submit in connection with such activities.
5 – COLORS
Jindilli has tried to display the colors of the products shown on the Site as accurately as possible. However, because the colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate.
6 – SUBMISSIONS; UNAUTHORIZED ACTIVITIES
- SUBMISSIONS
You acknowledge that (i) you are responsible for the comments, opinions, messages, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”), including without limitation, in any comment sections in Jindilli’s blogs, and (ii) that you, and not Jindilli, have full responsibility for each Submission that you make on the Site, including its legality, reliability, appropriateness, and trademark and copyright ownership. For the avoidance of doubt, Submissions do not include any Feedback (defined in Section 14). Unless otherwise explicitly stated herein or in the Jindilli Privacy Policy, you agree that any Submission provided by you in connection with this Site is provided on a non-proprietary and non-confidential basis. You hereby assign, transfer and convey to Jindilli all your worldwide right, title and interest in and to your Submissions, and the complete right to exploit or otherwise use the Submissions or any portion thereof, in any form of medium, expression or technology now known or hereafter known or developed, and all contract and licensing rights. However, Jindilli agrees to use all of your Submissions in accordance with Jindilli’s Privacy Policy applicable to personally identifiable information.You further agree that you will not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party; and the burden of determining whether any material is protected by any such right is yours. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Submission that you make.You represent and warrant that: (i) you own all Submissions posted by you on or through this Site or otherwise have the right to grant the ownership to Jindilli set forth in this section, and (ii) the posting of your Submissions on or through this Site does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. As noted below, our operation of the site does not require Jindilli to monitor, police or remove any Submissions or other information submitted by you or any other user.
- UNAUTHORIZED ACTIVITIES
When using this Site and/or the services on the Site, you agree not to do the following:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the material owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access or make use of content on the Site.
- Take any action that imposes or subjects an unreasonable or disproportionately large load on our Site infrastructure.
- Alter the comments or Submissions posted by others on this Site.
This list of prohibitions provides examples and is not complete or exhaustive. Jindilli reserves the right to (a) terminate your access to your account, your ability to post to this Site, and (b) refuse, delete or remove any Submissions, with or without cause and with or without notice, for any reason or no reason, or for any action that Jindilli determines is inappropriate or disruptive to this Site or to any other user of this Site and/or services on the Site. Jindilli may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Jindilli’s discretion, Jindilli will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
You agree to indemnify and hold Jindilli and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) Jindilli or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
7 – LINKS TO THIRD PARTY SITES
This Site may be linked to other web sites that are not Jindilli sites, including, without limitation, facebook.com and twitter.com (any and all of which of the foregoing listed websites may change from time to time) (collectively, “Third Party Sites”). In certain situations, you may be allowed to configure your privacy settings in your Third Party Site account to permit your activities on this Site to be shared with your contacts in your Third Party Site account. In addition, certain areas of the Site may allow you to conduct transactions, such as purchasing Products, through such Third Party Sites, including, without limitation, authorize.net, and, in certain instances, you may be transferred to a Third Party Site through a link but it may appear that you are still on this Site, but you acknowledge and agree that the terms and conditions and privacy policy of the Third Party Site apply in such situation and govern such transactions (if any). In any case, you acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Jindilli.com, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Site privacy policies, terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third Party Sites. Jindilli is providing links to the Third Party Sites to you as a convenience, and Jindilli does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the products, services, content, links displayed and/or any other activities conducted on or through such Third Party Sites. YOU AGREE THAT JINDILLI WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY PRODUCTS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. Any reference on the Site to any product, service, publication, institution, organization of any third party entity or individual does not constitute or imply Jindilli’s endorsement or recommendation thereof.
8 – PROPRIETARY RIGHTS
Jindilli is a trademark of Jindilli, Inc. in the United States, Canada, European Union, Japan, South Korea, Mexico, Argentina, Australia, New Zealand, Philippines, Russia, and Singapore. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Jindilli, Inc. Copyright © 2014 Jindilli, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
9 – COPYRIGHT AND TRADEMARK INFRINGEMENTS
Notification:
Jindilli respects the intellectual property rights of others, and we ask you to do the same. Jindilli may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide Jindilli’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- dentification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Jindilli to locate the material.
- Information reasonably sufficient to permit Jindilli to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Jindilli’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Jindilli Australia
12 Cessna Crescent Ballina NSW 2478
PO Box 3088 Wollongbar NSW 2477
(02) 66285111
info@jindilli.com.au
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
10 – LIMITED PRODUCT WARRANTY; DISCLAIMER OF WARRANTIES; DISCLAIMER OF PRODUCT INFORMATION
- LIMITED PRODUCT WARRANTY
Jindilli warrants that the products will be satisfactory for external use as directed. If you feel that Jindilli has violated the warranty of a product, Jindilli will offer you limited remedy in accordance with Jindilli’s Returns and Exchanges Policy (the “Returns and Exchanges Policy”). Please click here to view. This limited warranty is granted in lieu of any and all other warranties express or implied.
- DISCLAIMER OF WARRANTIES – SITE
THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS AND SUBMISSIONS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. JINDILLI, ON BEHALF OF ITSELF AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (EACH INDIVIDUALLY, A “JINDILLI PARTY” AND COLLECTIVELY, THE “JINDILLI PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE OR free from viruses, interference, hacking, loss, or corruption; (C) DOES NOT REPRESENT OR WARRANT THAT SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS AND SUBMISSIONS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS AND SUBMISSIONS.THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND JINDILLI WITH RESPECT TO YOUR USE OF THE SITE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JINDILLI OR ANY PERSON ON BEHALF OF JINDILLI SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.NOTHING IN THIS SECTION 10.2 SHALL EXCLUDE OR LIMIT THE JINDILLI PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
- DISCLAIMER OF PRODUCT INFORMATION
All material and information presented by Jindilli on the Site is intended to be used for personal educational or informational purposes only. Some of our personal care products may contain information about natural ingredients, natural processes and natural therapies, which are not regulated in the United States of America by the Food and Drug Administration (“FDA”). The statements made about products have not been evaluated by the FDA and the results reported, if any, may not necessarily occur in all individuals. The statements and products are not intended to diagnose, treat, cure or prevent any medical condition or disease. All products should be used strictly in accordance with their instructions, precautions and guidelines. You should always check the ingredients for products to avoid potential allergic reactions. Use of the Site is not meant to serve as a substitute for professional medical advice: the Site is solely an online store for specialty beauty products. Please consult with your own physician or health care practitioner regarding the use of any goods, products or information received from the Site before using or relying on them. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. Jindilli does not give or intend to give any answers to medical related questions and the Site does not replace any medical professional or medical resource. Jindilli does not represent itself as a physician nor is this implied. No prescription medications or medical treatments are intentionally provided on the Site. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY.
11 – Limitation of liability
- LIMITATION OF LIABILITY – SITE
IN NO EVENT SHALL ANY JINDILLI PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A JINDILLI PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IF, NOTWITHSTANDING THE FOREGOING, A JINDILLI PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, MEMBERSHIPS OR SUBMISSIONS, THE RELEVANT JINDILLI PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED TEN DOLLARS ($10.00).
NOTHING IN THIS SECTION 11.1 SHALL EXCLUDE OR LIMIT ANY JINDILLI PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH JINDILLI PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
- LIMITATION OF LIABILITY – PRODUCT
WHEN YOU PURCHASE PRODUCTS THROUGH THE SITE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT IN NO EVENT SHALL ANY JINDILLI PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; INCLUDING (BUT NOT LIMITED TO) COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE PURCHASE AND USE OF THE PRODUCTS PURCHASED THROUGH THE SITE, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY). NOTWITHSTANDING THE FOREGOING, A JINDILLI PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER, OR IN CONNECTION WITH, YOUR PURCHASE OR USE OF ANY PRODUCTS PURCHASED THROUGH THE SITE, TO THE EXTENT THAT SUCH LIMITATION IS PERMITTED UNDER APPLICABLE LAW, THE RELEVANT JINDILLI PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE SUM OF: (i)THE PURCHASE PRICE OF THE PRODUCT THAT IS THE BASIS FOR SUCH CLAIM, PLUS (ii) ANY SHIPPING AND HANDLING COSTS CHARGED TO THE CLAIMANT FOR SUCH PRODUCT, PLUS (iii) TEN DOLLARS ($10.00). NOTHING IN THIS SECTION 11.2 SHALL EXCLUDE OR LIMIT ANY JINDILLI PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH JINDILLI PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
12 – Disputes and Arbitration; Class Action Waiver
- DISPUTES AND ARBITRATION
This Section (Section 12) facilitates the prompt and efficient resolution of any disputes that may arise between you and Jindilli. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Section (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.Please read this Section carefully. It provides that all Disputes (as defined below) between you and Jindilli shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this Agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorneys’ fees).For the purpose of this Section, “Jindilli” means Jindilli and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Jindilli regarding any aspect of your relationship with Jindilli, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS SECTION.Notwithstanding any Section in this Agreement to the contrary, we agree that if Jindilli makes any change to this Section (other than a change to the Notice Address), you may reject any such change and require Jindilli to adhere to the language in this Section if a Dispute between us arises.
Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give Jindilli an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Jindilli, Attn: Jim Richards, 1801 South Meyers Road, Suite 400, Oakbrook Terrace IL 60181. That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If Jindilli does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or Jindilli may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Section by mailing written notification to Jindilli, Attn: Jim Richards, 1801 South Meyers Road, Suite 400, Oakbrook Terrace IL 60181. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Jindilli through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with Jindilli. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures. If this Section applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Jindilli may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Section.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Section governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or Jindilli may initiate arbitration in either Chicago, Illinois, or the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, APIASF may transfer the arbitration to Chicago, Illinois, in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs. Jindilli will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to your own attorneys’ or expert witness’ fees. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Jindilli as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
- CLASS ACTION WAIVER
Except as otherwise provided in this Section, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Jindilli specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Section, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
- JURY WAIVER
You understand and agree that by entering into this Agreement you and Jindilli are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Section, you and Jindilli might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
- SEVERABILITY
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable and the Dispute will be decided by a court.
- CONTINUATION
This Section 12.1 through 12.5 shall survive the termination of your use of the Site.
13 – LOCAL LAWS; EXPORT CONTROL
Jindilli controls and operates this Site from its headquarters in the United States of America and the Materials and Submissions may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
14 – FEEDBACK
If you send or transmit any business suggestions, ideas, or feedback concerning the Site, Products, Materials and/or any other content or services of Jindilli, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Products, the Site and/or any services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Jindilli is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Jindilli is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
15 – GENERAL
If you violate these Terms, Jindilli may terminate and/or suspend your access to this Site without notice. Jindilli prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Jindilli, may result in immediate termination of your access to this Site. The Federal Arbitration Act, Illinois state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Any disputes relating to these Terms or this Site will be heard in the courts located in DuPage County in the state of Illinois or the federal court for the Northern District of Illinois. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Jindilli’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Jindilli and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Jindilli about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
16 – CONTACT US
If you have any questions about these Terms or otherwise need to contact Jindilli for any reason, you can reach us at:
Jindilli Australia
info@jindilli.com.au
