Buzz Box Video Pty Limited provides an online platform under the trade name of JamarGig allowing Users to connect through the JamarGig Platform with other Users who provide services for the entertainment industry. These terms & conditions (“Terms”) outline the Company’s and Your obligations and responsibilities when using or accessing the JamarGig Platform. Please read these terms and all the Company on-line Policies carefully before using the JamarGig Platform. These Policies are incorporated into this Agreement by reference. All defined terms in this Agreement have the meaning given to them below unless otherwise set out in this Agreement.
1. DEFINITIONS
“Agreement” means the terms and conditions set out in clauses 1 to 14 which govern the provision of the JamarGig Services by the Company to You.
“Company” means Buzz Box Video Pty Limited the company duly authorised and entitled to enter into this Agreement with You for the provision of the Services through the JamarGig Platform in accordance with these terms and conditions.
“Content” means all data that is uploaded to the JamarGig Platform by or on behalf of a User, to be used pursuant to the Services or a Posted Task which may include: pictures, digital images, graphics, music, video, audio, text, profiles and employment resumes or documented experience data;
“Data Privacy Law” means any state or national law or regulation protecting the privacy, confidentiality, or security of Personal Data or Personal Information (as those terms are defined in the relevant legislation) and any specific categories of Personal Data or Personal Information including the Australian – Privacy Act 2010 (Cth.), the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), the California Consumer Privacy Act of 2018 (“CCPA”), and laws of similar purpose or effect in any relevant jurisdiction, in each case as amended, updated, re-enacted or replaced from time to time;
“Fee(s)” means the charges payable by User to the Company under a User Account for each individual User access to the JamarGig Platform and the Services as further set out on the JamarGig Price List. Fees shall also include Additional Fees as described in clause 6.3.
“Force Majeure” means acts of God, acts of government, strikes, lockouts or other industrial disturbances, blockades, wars, insurrections or riots, epidemics, landslides, fires, storms, floods, explosions or other similar causes beyond the control of a party, provided that such party has not substantially contributed to the occurrence of such acts through its own default or negligence;
“Intellectual Property Rights” includes all intellectual property rights and industrial property rights throughout the world including rights in respect of or in connection with:
• all rights in any trade secrets or other Confidential Information;
• copyright (including future copyright and rights in the nature of or analogous to copyright);
• right of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future (moral rights);
• inventions (including patents);
• trade marks;
• service marks; and
• rights in designs, whether or not now existing and whether or not registered or registrable, and includes any right to apply for the registration of such rights and includes all renewals and extensions.
“JamarGig Platform” means the Company audition management software as described at https://jamargig.com , and any other affiliated platform including the Company smartphone app that may be introduced from time to time.
“JamarGig Service” or ”Service” means the services to be rendered or received by Users through the JamarGig Platform and through which Users can subsequently submit and respond to Posted Tasks and undertake activities in respect of those tasks.
“JamarGig Terms of Use Guidelines” means the User’s terms of use as set out in clause 4 and the JamarGig Privacy Policy governing Your use of the JamarGig Platform.
“Policies” means the policies posted by the Company on the JamarGig Platform, including but not limited to the Terms of Use Guidelines.
“Posted Task” means a request for the purposes of rendering or receiving requests for professional services published on the JamarGig Platform and includes the information and description of the professional services required or to be provided.
“Subscription” means an account that provides the User with access to the Service for the corresponding period of time. Subscriptions shall be provided for a monthly, annual or other time period agreed with the Company and Subscription Term shall have the corresponding meaning .
“Third Party Dispute Service” means a third party dispute resolution service provider used to resolve any disputes between Users.
“Third Party Service” means the promotions and links to services offered by third parties as may be featured on the JamarGig Platform from time to time. Third Party has the corresponding meaning;
“User Account ” means an account that provides the User with access to the Service for an ongoing period of time as agreed between the Company and the User.
“User” or “You” means the person being an individual or an organisation, who has signed up to use the JamarGig Platform, whether as Talent, Talent Representative or Casting or Production Company as further described in clause 2.1 and 2.3, or otherwise updated from time to time.
2. SCOPE OF JAMARGIG SERVICES AND ELIGIBILITY
2.1. The Company provides the JamarGig Platform to enable Users made up of one or more of: Talent, Talent Representatives and Casting Companies (as further defined below) to connect for the purpose of rendering or receiving offers for professional services in the areas of entertainment, including but not limited to: motion pictures, theatricals, radio, television and other entertainment enterprises (collectively the “Services”). These Services are facilitated by the Company and made available through the JamarGig Platform on one or more of the Company websites, mobile websites, apps, or from other services, products, tools, offers or communications provided by the Company
2.2. In order to gain access to the JamarGig Platform Users shall first register and subscribe through the Company portal available at: https//jamargig.com or as provisioned by the Company to gain access to the Services. By registering and signing up for the JamarGig Platform, Users shall be able to use the JamarGig Platform for the term they are approved for use on the JamarGig Platform subject to the terms and conditions of this Agreement.
2.3. Eligibility: You must be an industry professional to participate in the Services which shall be:
a) an entertainment artist, including an actor, model, dancer, voice-over talent, musician, a musical or performance group or other artist (“Talent”);
b) An entertainment production company or venue, including: casting or production directors, TV or Movie production companies, theatres or musical theatres or venues, filmmakers and other entertainment industry professionals who wish to utilize the professional services of Talent (Casting or Production Company); or
c) A professional Talent representative (e.g., talent agency or management company), or an employee or authorised representative thereof who are authorised to represent Talent (“Talent Representative”); or
d) A general supplier of goods and services to the entertainment industry which interacts with one or more of the above and as agreed by the Company.
2.4. Access to the Services may allow Users to undertake tasks on the JamarGig Platform which could include (but not be limited to) the following:
a) For Talent:
i. Submit applications for roles and auditions based on best skillset and experience with one or more nominated Casting or Production Company’s;
ii. Live audition scheduling
iii. View application status with real-time updates and feedback.
iv. See decisions and requests for further information;
v. Collaborate with Casting or Production companies with whom they have subscribed;
vi. Collaborate with other Talent;
vii. Receive casting offers and contracts in an efficient and manageable format.
viii. Provide personal profile information that can be publicly published and/or supplied to Talent Representatives, Casting or Production Companies
b) For Casting or Production Company’s:
i. View on-line profiles and history of available Talent.
ii. Publish projects or requirement requests on the JamarGig Platform;
iii. Schedule and perform auditions and assess on-line auditions for Talent;
iv. Manage live scheduling, recording and assessment of Talent applications;
v. On-line approval process for successful Talent candidate;
vi. On-line Contract creation and execution.
c) For Talent Representatives:
i. Share profiles of Talent they support with Casting or Production Company’s or other Users with the appropriate permissions
ii. Manage and facilitate on the Talent’s behalf the activities highlighted as Services available in clause 2.4 a) above.
2.5. Each User who shares information or data of a personal nature (as defined by applicable Data Privacy Laws) with other Users through the JamarGig Platform shall obtain the appropriate consents and approvals as required under any applicable Data Privacy Law from the other User in full compliance with the applicable Data Privacy Laws. This shall include obtaining documented consent or providing data processing information provided to the relevant individuals whose personal information or data is being shared.
2.6. Authorisation to Act on Behalf of Talent: Each Talent Representative warrants and represents that it is legally authorised to represent its respective Talent in connection with the Services and to utilise all aspects of the applicable Services on behalf of the Talent in accordance with these Terms. This utilisation shall include where applicable, the completion of a profile or resume of the Talent and the sharing of that information with other Users and Third Parties where so permitted to do so. A Talent Representative agrees to stop using the Services immediately when such authority from Talent is no longer in effect. The Company are not obligated, but reserve the right at any time, to require evidence of a Talent Representative’s authority to enter into these Terms and act on behalf of Talent in connection with the Services. Each Talent Representative also represents and warrants that they have the appropriate consents and authorisations as required under any applicable Data Privacy Law from the Talent and that all information of a personal nature that they collect and post on the JamarGig Platform has been collected and made available in full compliance with the applicable Data Privacy Laws. This shall include the requirements referenced in clause 2.5 above.
2.7. Each User is solely responsible for their acts or omissions in connection with the Services, including any violation of these Terms and JamarGig’s Privacy Policy. Each User indemnifies and holds harmless the Company and its affiliates, employees, officers, directors, and representatives from any losses, costs, expenses, damages, fines and/or penalties including reasonable attorneys’ fees, arising out of or in connection with a breach of this representation under clauses 2.4 and 2.5.
2.8. Individual Responsibility: If You are an individual acting on behalf of a Casting or Production Company or a Talent Representative, corporate or other legal entity (which may have also agreed to these Terms or have a separate agreement with the Company), You are individually bound by these Terms as an individual User.
2.9. Responsibility to Update Talent Information: Talent or Talent’s Authorised Representative are responsible for promptly notifying the Company when a Talent Representative has been terminated or changed. If Talent has no representation, the Company will turn control of the existing User Account over to Talent or Talent’s authorised representative subject to their direct acceptance of these Terms. If changed, the Company will transfer the existing User Account membership to the new Talent Representative as directed by the Talent or Talent’s authorised representative. Any changes should be sent to [email protected] or uploaded through the JamarGig Platform where permitted.
3. COMPANY’S ROLE AND OBLIGATIONS
3.1 The Company provides the JamarGig Platform only, enabling Users to interact with each other in respect of Posted Tasks.
3.2 The Company only permits organisations or individuals over 18 years of age to become Users.
3.3 Users must be natural persons but can specify within their account description that they represent a business entity.
3.4 At its absolute discretion, the Company may refuse to allow any person to register or create a User Account with the Company or cancel or suspend or modify any existing User Account including if the Company reasonably forms the view that a User’s conduct (including a breach of this Agreement) is detrimental to the operation of the JamarGig Platform.
3.5 Each User will be required to register a User Account. By registering a User Account a User shall be able to access the JamarGig Platform and the JamarGig Services for the entitlements acquired by the User and for which the User has agreed to pay the corresponding Fees in the then current price list, or as otherwise agreed in writing with the Company.
3.6 Users will only be permitted to review Content from other Users who have given consent to the sharing of their Content.
3.7 The Company shall only use the Content for the purpose of operating the JamarGig Platform and to provide the Services under and in accordance with this Agreement. The Company may not use the Content for advertising or promotional purposes of the Services or the JamarGig Platform or for any other purpose without Your prior written consent
3.8 The Company accepts no liability for any aspect of any Users interaction with one or more other Users, including but not limited to the description, performance or delivery of services in respect of Posted Tasks through the JamarGig Platform.
3.9 The Company has no responsibility and makes no warranty as to the truth or accuracy of any aspect of any Content provided by Users, including, but not limited to, the ability of Users to perform tasks or supply items, or the honesty or accuracy of any Content provided by Users.
3.10 Except for liability in relation to any implied condition, warranty or guarantee in a contract, the exclusion of which would contravene the law or cause any part of the contract to be void, the JamarGig Service is provided on an “as is” basis, and without any warranty or condition, express or implied. To the extent permitted by law, we and our suppliers specifically disclaim any implied warranties of title, satisfactory quality or merchantability, fitness for a particular purpose and non-infringement.
3.11 The Company has no obligation to any User to assist or involve itself in any dispute between Users, although may do so to improve User experience.
3.12 The Company provides the Services strictly on an “AS IS” basis and does not guarantee that the Services will function without interruption or errors in functioning or be virus-free. The operation of the Services may be interrupted due to maintenance, updates, or system or network failures. The Company disclaims all liability for damages caused by any interruption, malfunction, impossibility of access, or poor use conditions of the Services for any reason. Use of the Services is at Your own risk, to the fullest extent permissible under applicable law. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.13 Where legislation implies in these Terms any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in these Terms. However, to the extent permissible under applicable law, the liability of the Company for any breach of such condition or warranty shall be limited to the cost of supplying of the Services again.
4. USER OBLIGATIONS
4.1 The Company Terms of Use Guidelines: You will at all times:
a) comply with this Agreement (including all Policies requested or made available on-line by the Company) and all applicable laws and regulations;
b) only post accurate information on the JamarGig Platform;
c) ensure that You are aware of any laws that apply to You as a User, or in relation to using the JamarGig Platform.
4.2 You agree that any Content (whether provided by the Company, a User or a third party) on the JamarGig Platform may not be used on third party sites or for other business purposes than those contemplated by this Agreement without the Company’s or the applicable Users express prior permission or consent.
4.3 You must not use the JamarGig Platform for any illegal or immoral purpose.
4.4 You must maintain control of Your User Account at all times. This includes not allowing others to use Your Use Account, or by transferring or selling Your User Account or any of its content to another person.
4.5 You grant the Company an unrestricted, worldwide, royalty-free licence to use, reproduce, modify and adapt any Content posted on the JamarGig Platform for the purpose of publishing material on the JamarGig Platform and as otherwise may be required to provide the JamarGig Service, for the general promotion of the JamarGig Service, and as permitted by this Agreement.
4.6 You agree that any Content posted on the JamarGig Platform must not, in any way whatsoever, be potentially or actually harmful to the Company or any other person or User. Harm includes, but is not limited to, economic loss that will or may be suffered by the Company or any other person or User.
4.7 Without limiting any provision of this Agreement, any information You supply to the Company or publish in a Posted Task must be up to date and kept up to date and must not:
a) be false, inaccurate or misleading or deceptive;
b) be fraudulent or involve the sale of counterfeit or stolen items;
c) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy;
d) violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export and import control, consumer protection, unfair competition, criminal law, antidiscrimination and trade practices/fair trading laws);
e) be defamatory, libellous, threatening or harassing;
f) be obscene or contain any material that, in the Company’s sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images; or
g) contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of any JamarGig Platform, including, but not limited to viruses, trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or information that is personal information or personal data under applicable Data Privacy Laws.
4.8 You may not take any action to jeopardise, limit or interfere with our ownership of and rights with respect to the Company website or any Content. The use, copying, sale, leasing, renting, lending, distribution, modification, downloading, creating of derivative works, posting or publication by you, directly or indirectly, of any Content, or any other use of such Content, except pursuant to the foregoing express limited grant of rights, is strictly prohibited. Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited. You acknowledge that any unauthorised copying or unauthorised use of the Company websites or of any Content is a violation of these Terms and is strictly prohibited.
4.9 Users must have the right to provide Services and to work in the jurisdiction where the Services are performed. Users must comply with tax and regulatory obligations in relation to any payment received pursuant to the Services.
4.10 You must not request payments outside of the JamarGig Platform for the JamarGig Services except to the extent agreed by the respective parties.
4.11 You are fully responsible for all activities conducted through Your User Account. During the registration process You will also be asked to choose a password. You are entirely responsible for maintaining the security of Your password and keeping it confidential.
4.12 You may not use another User’s User Account or password at any time, let an unauthorised third party access or use Your User Account. You agree to notify us immediately if You suspect any unauthorised access or use of Your User Account or password. You will be liable for our losses or the losses of others as a result of such unauthorised use until such time as You prove that Your User Account security was compromised due to no fault of Your own.
4.13 If the Company determines at its sole discretion that You have breached any obligation under this clause 4, it reserves the rights to remove any content, Posted Task You have submitted to the JamarGig Platform or cancel or suspend Your User Account. Violation of these limited use rights may result in immediate termination of your access to the JamarGig Platform and use of the Company websites and may result in legal action against You.
5. Intellectual Property Rights and Access to Content
5.1 You acknowledge that by using the Services You may have access to pictures, digital images, graphics, music, video, audio, text, profiles and resumes and otherwise referred to as Content; owned or licensed by Users. You acknowledge that Users have rights in their respective Content under copyright and other applicable laws and treaty provisions. You accept full responsibility and liability for Your use of any Content in violation of any such rights.
5.2 The Company may choose, but has no obligation, to pre-screen or monitor the Services for inappropriate Content or conduct at any time, and it may delete any Content that violates these Terms, as determined by the Company in its sole discretion. However, if the Company chooses to pre-screen or monitor Content, the Company nonetheless assumes no responsibility for such Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
5.3 You understand that when using the Services, You will be exposed to Content from a variety of sources, and that the Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that You may be exposed to Content that is inaccurate, offensive, indecent, objectionable, or that contains errors or omissions
5.4 All Content, including all project information posted on the JamarGig Platform by any User pursuant to a Posted Task, is either owned or licensed by the User that submitted it. Therefore, other Users of the Services may not distribute, modify, transmit, reuse, download, repost, copy, or use the Content of others, including project information, for any reason without express prior written permission and consent from the User that posted it. A violation of this clause is cause for immediate and permanent termination of Your right to use the JamarGig Services.
5.5 You acknowledge and confirm that, unless otherwise agreed in writing, the Company shall retain all Intellectual Property Rights associated with the JamarGig Service other than the Intellectual Property Rights in the Content.
5.6 You acknowledge, confirm and agree that You will not allow any act to be done in respect of the Services which is not expressly permitted by these Terms.
5.7 You hereby grant the Company and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable and transferable license to:
a) use, reproduce, distribute, transmit, publicly display, communicate to the public, modify and publicly perform Content and adaptations thereof, in connection with the development, operation, maintenance, enhancement, and promotion of the Services and the operation of the JamarGig Platform and business;
b) to collect, combine, aggregate, and analyse data related to the User’s use of the Services; and
c) use the User’s name and logo and or represent that the Company provides Services to them for the purposes of marketing and/or promoting the JamarGig Platform and business, without compensation or need for the User’s prior approval.
d) The Company will not publicly use Content for the Company’s own advertising or promotion of the JamarGig Platform unless consent is provided by the User or as otherwise specified in this Agreement.
5.8 You also agree to irrevocably waive (and cause to be waived) any claims and assertions of so-called “moral rights” or rights of attribution with respect to the Content.
6. FEES AND PAYMENT
6.1 Upon registration and the creation of a User Account on the JamarGig Platform, each User owes the Company the respective Fees for the usage entitlements acquired for the purposes of accessing and using the JamarGig Platform under the User Account. The Fees payable are set out in the Company price list available on the JamarGig Platform or as otherwise advised to the User by the Company through a proposal or offer for the applicable use entitlements under the User Account. Subject to clause 6.3 the Fee will be on either an annual basis, a one-time monthly basis or a recurring monthly billing Subscription basis for the User Subscriptions acquired. All Fees are exclusive of any and all applicable taxes including sales taxes ( including value added or goods and services tax (if any)). These amounts will be charged separately in Your invoice(s).
6.2 The Company will bill You the appropriate Fees, applicable taxes and any other disclosed charges for the Services using the billing information provided by You. You agree to pay the Company all Fees at the prices then in effect for Your use of the Services (or such prices otherwise agreed in writing) either by electronic funds transfer to the Company’s nominated bank account as advised by the Company or using Your nominated payment provider detailed in Your billing information You have provided to JamarGig through the JamarGig Platform, in which case You authorise JamarGig to charge You for the Fees associated with the Services selected and acquired. You agree that JamarGig may store Your payment card information. All Fees other than Additional Fees as referred to below are billed in advance and are subject to our Subscription terms, presented and agreed by You at the time You sign-up for a User Account and will automatically renew unless You advise the Company prior to expiry of the applicable Subscription Term. For each User Account, in the event in any month the number of Users entitlements is in excess of the User entitlement acquired under such User Account then the Company will invoice You and You will be required to pay
6.3 The Company shall charge the appropriate Fee, and applicable taxes as an additional charge on a monthly basis for any such use in excess of the User entitlements acquired at the then current Fee rate in effect (“Additional Fees”). Additional Fees shall be charged on a monthly in arrears basis. You must pay all invoices in full within fourteen (14) days of the invoice date. Where You use a third party payment provider such as a credit card company to make payments under this Agreement, if the Company does not receive payment from Your such payment provider, You agree to pay all amounts due on Your User Account upon demand. In the event we have to collect unpaid Fees owed, You will be liable for any collection costs and fees (including reasonable legal fees in doing such).
6.4 All Fees are in US Dollars, unless otherwise indicated, and do not include Internet service provider, telephone, or other connection charges, if any, that are billed by third parties. Depending upon Your credit card’s currency and the country in which Your card was issued, your credit card provider may impose foreign exchange fees and other fees in accordance with Your arrangements with that credit card provider.
6.5 If You choose an annual, monthly or other agreed Subscription, the renewal payment will continue on a continuous basis until cancelled, as described in clause 6.6 below. You agree that the Company is authorised to bill You each month using Your nominated payment method provided in Your billing information provided to the Company.
6.6 If You cancel a month-to-month Subscription, You will avoid future Fees but partial months are not refunded. If You cancel a prepaid annual Subscription, You will be charged the regular monthly rate for the balance of the Subscription Term acquired with no right of refund.
6.7 For any cancellation under this clause 6, the Company will cancel Your User Account as soon as possible after resolving any outstanding account issues and in accordance with applicable law.
6.8 Other than otherwise set out in this clause 6, all Fees and charges payable to the Company are non-cancellable and non-refundable, except save for Your rights under any implied condition, warranty or guarantee in an agreement, the exclusion of which would contravene the law or cause any part of the agreement to be void.
6.9 If the Company introduces a new service on the JamarGig Platform, the Fees applying to that service will be payable as from the launch of that service.
6.10 The Company may restrict a User Account until all applicable Fees have been paid.
7. THIRD PARTY SERVICES
7.1 The Company may from time to time include Third Party Services on the JamarGig Platform. These Third Party Services are not provided by the Company.
7.2 Third Party Services are offered to Users pursuant to the third party’s terms and conditions. Third Party Services may be promoted on the JamarGig Platform as a convenience to our Users who may find the Third Party Services of interest or of use.
7.3 If a User engages with any Third Party Service provider, the agreement will be directly between the User and that Third Party Service provider.
7.4 The Company makes no representation or warranty as to the Third Party Services.
8. FEEDBACK
8.1 You can complain about any comment made on the JamarGig Platform by contacting the Company via the JamarGig Platform or by emailing [email protected].
8.2 The Company is entitled to suspend or terminate Your User Account at any time if JamarGig, in its sole and absolute discretion, is concerned by any feedback about You, or considers Your feedback rating to be problematic for other Users.
9. LIMITATION OF LIABILITY
9.1 Except for liability in relation to breach of implied condition, warranty or guarantee in a contract, the exclusion of which would contravene the law or cause any part of the contract to be void and to the extent permitted by law, the Company or its respective suppliers or licensors in hosting, operating or delivering the Services specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of Services supplied, or arising out of or in any way connected with any interactions between Users when using the Services of the JamarGig Platform or these terms, whether or not the Company may have been advised that any such damages might or could occur.
9.2 The Company’s and its affiliates’ and suppliers’ maximum aggregate total liability to the User arising from or relating to these terms and conditions, regardless of the form of action (whether in contract, tort, strict product liability, or otherwise), shall be limited in the aggregate to the total of all payments received by the Company or invoiced to the User in the twelve (12) months prior to the event(s) giving rise to such liability.
9.3 To the extent that the applicable law does not allow limitations on implied warranties or conditions, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations will be enforced to the maximum extent permitted under applicable law.
9.4 indemnification
You agree to defend, indemnify and hold harmless the Company and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensors and distributors from and against all damages, losses, liabilities, claims, and costs (including, but not limited to, reasonable attorneys’ fees and costs including costs to respond to regulatory inquiries, actions or subpoenas) related to all third party claims, charges, and investigations, arising from, relating to, or caused by (a) Your use of the Services, (b) Your failure to comply with these terms, including, without limitation, Your submission or use of content in violation of third party rights or applicable laws, rules or regulations.
10. PRIVACY
10.1 In circumstances when using the JamarGig Platform other Users or Third Parties may provide their service to You pursuant to their own Privacy Policy. Prior to acceptance of any service from a third party, You must review and agree to their terms of service including their privacy policy.
10.2 The Company will endeavour to permit You to communicate anonymously on the JamarGig Platform. However, in order to ensure the Company can reduce the incidence of fraud and other behaviour in breach of the JamarGig Terms of Use Guidelines set out in clause 4 and on the JamarGig Platform, the Company reserves the right to ask Users to verify themselves in order to remain a User.
10.3 Where Content is collected, created, stored, held, used, disclosed in connection with the use of the Service by You:
a) the parties agree to take reasonable steps to protect the Content; and
b) You agree to comply with, and to ensure that Your personnel comply with, applicable Data Privacy Laws.
10.4 You agree to assist and cooperate with the Company in respect of any obligations arising under applicable Data Privacy Laws including but not limited to with respect to:
a) any requirements including timeframes set down in applicable Data Privacy Laws regarding the assessment of data breaches and notification of data breaches to regulatory bodies and individuals; and
b) requests from individuals to access their Personal Information or Personal Data (as applicable under the relevant legislation) or for their information to be corrected, updated, transferred, deleted or de-identified.
10.5 You must ensure that it has obtained the necessary consents and permissions, in writing where practicable, from any individuals whose Personal Information or Personal Data (as applicable) will be provided to the Company.
Notifiable Data Breaches Scheme (Australia) only
10.6 The parties acknowledge that:
a) You must comply with the obligations set out in Part IIIC (Notification of Eligible Data Breaches) of the Privacy Act in relation to Personal Information relating to the provision of the Services by the Company, including the obligations to prepare a statement about an eligible data breach under Section 26WK of the Privacy Act 2010 (Cth) and the notification requirements under Section 26WL of the Privacy Act 2010 (Cth), and provide timely reports to the Company in that respect;
b) To the extent the Company is aware that there are reasonable grounds to suspect that there may have been an eligible data breach (as that term is defined in Section 26WE of the Privacy Act 2010 (Cth)) in relation to Personal Information or is otherwise aware that there are reasonable grounds to believe that the relevant circumstances amount to an eligible data breach in relation to Personal Information (an “Incident”), the Company may notify You of the Incident, including by providing any relevant details relating to the Incident, and You must comply with its obligation under clause 10.6(a) in relation to the Incident and provide timely reports to the Company in that respect;
c) You will assume all obligations in relation to an eligible data breach concerning Personal Information relating to the provision of the Services by the Company for the purposes of Part IIIC of the Privacy Act 2010 (Cth) and any other obligations that may arise under the Privacy Act and the general law concerning Personal Information, and that Your obligations under clauses 10.6(a) and 10.6(b) apply regardless of whether the Company may have any similar or equivalent obligations under the Privacy Act 2010 (Cth);
d) The Company will provide You with reasonable assistance and cooperation to assist User’s compliance with clauses above;
e) You are taken to hold, and is treated as holding, Personal Information relating to the provision of the Services by the Company for the purposes of the Privacy Act 2010 (Cth);
f) The Company agrees to use all reasonable endeavours to assist and co-operate with User in the discharge of Your obligations under this clause 10.6 including providing information, taking steps or undertaking acts that may be reasonably required by You to meet these obligations; and
g) You agree to indemnify the Company for all costs and expenses reasonably incurred by the Company in connection with assisting and co-operating with You under this clause 10.6.
11. MODIFICATIONS TO THE AGREEMENT
11.1 The Company may modify this Agreement or the Policies (and update the Company pages on which they are displayed) from time to time. The Company will send notification of such modifications to Your User Account or advise You the next time You login.
11.2 When You actively agree to amended terms (for example, by clicking a button saying “I accept”) or use the JamarGig Platform in any manner, the amended terms will be effective immediately. In all other cases, the amended terms will automatically be effective 30 days after they are initially notified to You.
11.3 If You do not agree with any changes to this Agreement (or any of our Policies), You must either terminate Your User Account or You must notify the Company who will terminate Your User Account and stop using the JamarGig Service.
12. NO AGENCY
No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular You have no authority to bind the Company, its related entities or affiliates in any way whatsoever. The Company confirms that all Third Party Services that may be promoted on the JamarGig Platform are provided solely by such Third Party Service providers. To the extent permitted by law, the Company specifically disclaims all liability for any loss or damage incurred by You in any manner due to the performance or non-performance of such Third Party Service.
13. NOTICES
13.1 Except as stated otherwise, any notices must be given by registered ordinary post or by email, either to the Company’s contact address as displayed on the JamarGig Platform, or to Users’ contact address as provided at registration. Any notice shall be deemed given:
a) if sent by email, 24 hours after email is sent, unless the User is notified that the email address is invalid or the email is undeliverable, and
b) if sent by pre-paid post, three Business Days after the date of posting, or on the seventh Business Day after the date of posting if sent to or posted from outside the jurisdiction in which You have Your User Account.
13.2 Notices related to performance of any Third Party Service must be delivered to such third party as set out in the Third Party Service provider’s terms and conditions.
14. MEDIATION AND DISPUTE RESOLUTION
14.1 The Company encourages You to try and resolve disputes (including claims for returns or refunds) with other Users directly. Accordingly, You acknowledge and agree that the Company may, in its absolute discretion, provide Your information as it decides is suitable to other parties involved in the dispute.
14.2 In the event of a dispute, controversy or claim arising in relation to the Service (including these Terms) (a “Dispute”), the party raising the Dispute must notify the other party in writing of the existence and nature of the Dispute including detailed particulars of the dispute (“Notice of Dispute”) and the parties shall use their best endeavours to resolve the Dispute in good faith. The parties agree to use good faith efforts to resolve the Dispute, but If the parties do not reach an agreement to do so within twenty (20) Business Days after the Notice of Dispute is received, You or the Company may appoint a mediator in accordance with clause 4.
14.3 The parties will agree upon the identity of a mediator within 5 (five) Business Days of a Notice of Dispute being properly given and, failing agreement, the mediator will be nominated by the chief executive of the Australian Disputes Centre Limited (ADCL) on the request of any party. When choosing a mediator, the parties (or ADCL as the case may be) must have regard to the nature of the dispute and the relevant expertise of the mediator in respect of the nature of the Dispute.
14.4 The parties must, within five (5) Business Days of the appointment of the mediator, confer in the presence of the mediator, either in person or by telephone conference, to:
a) identify the subject matter of the Dispute;
b) identify the provisions of these terms and conditions relevant to the Dispute;
c) discuss each party’s position in relation to the Dispute;
d) listen to any comments made by the mediator;
e) attempt to resolve the Dispute by mutual agreement;
f) the mediation will be conducted by the mediator at a time, place and in a manner agreed between the parties or otherwise nominated by the mediator;
g) the parties agree that the mediator will act as an aid to assisting and to resolve the Dispute and not as a determiner or decider or any matter;
h) the parties involved in the mediation will share equally the costs of the mediation; and
i) if the dispute is not settled or resolved within twenty (20) Business Days after the appointment of the mediator (or such other time as may be agreed between the parties), any party to the Dispute may terminate the mediation proceedings by written notice.
14.5 The parties both agree that this clause 14 does not apply in relation to
a) the non-payment of Fees in respect of the Service;
b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available;
c) seek declaratory or injunctive relief in a court of law; or
d) to commence legal proceedings in to address a claim in relation to an alleged infringement of Intellectual Property Rights.
14.6 The Company may provide access to a Third Party Dispute Service. If such a service is provided, either party may request the other party to submit to the Third Party Dispute Service if the parties have failed to resolve the dispute directly. Terms and conditions for the Third Party Dispute Service will be available on request. The Third Party Dispute Service is a third party service and Users are responsible for paying any costs associated with the Third Party Dispute Service in accordance with the Third Party Dispute Service terms and conditions.
14.7 Disputes with any Third Party Service provider must proceed pursuant to any dispute resolution process set out in the terms of service of the Third Party Service provider.
14.8 If You have a complaint about the JamarGig Service please contact us via email to [email protected]. If You believe any material contained within the Services infringes a copyright, You should provide us with a request to takedown the allegedly infringing material in writing using the contact details in clause 14.8. Any such written request should include details such as:
a) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
b) Your name, address, telephone number and email address (if available);
c) Details as to why the complaining party has a belief that use of the material in the manner complained of is not authorised by the copyright owner, its agent, or the law; and
d) Confirmation that the information in the notification is accurate and that the complaining party is authorised to act on behalf of the owner of an exclusive right that is allegedly infringed.
14.9 If the Company provides information about other Users to You for the purposes of resolving disputes under this clause, You acknowledge and agree that such information will be used only for the purpose of resolving the dispute (and no other purpose) and that You will be responsible and liable to the Company for any costs, losses or liabilities incurred by the Company in relation to any claims relating to any other use of information not permitted by this Agreement.
15. TERMINATION
15.1 Without limiting the rights of the Company to withdraw the Service from a User under this Agreement, the Company may terminate its obligations under these Terms by notice in writing to You if You:
a) commits a breach of these Terms where:
i. the breach can be remedied and You fail to remedy such breach within ten (10) Business Days after receipt of a notice from the Company specifying the breach and requiring You to remedy such breach, provided that the Company may, in its discretion, suspend the Service and any applicable services during such cure period; or
ii. the breach cannot be remedied; or
iii. becomes Insolvent.
b) Upon expiration of the term of the Agreement You must immediately cease use of the Service, and promptly return to the Company all confidential Information of the Company held by You.
15.2 If notice is given to You pursuant to clause 15.1, the Company may, in addition to terminating these Terms:
i. retain any monies paid in relation to these Terms;
ii. be regarded as discharged from any further obligations under these Terms;
iii. pursue any additional or alternative remedies provided by law, including any monies owed to the Company by You.
15.3 You may terminate Your obligations under these Terms by giving notice in writing to the Company if the Company becomes Insolvent.
15.4 You may terminate these Terms for convenience by not less than thirty (30) days’ prior written notice to the Company, provided always that any termination of these Terms by You pursuant to this clause 15 shall not relieve You of any payment obligations under clause 6 of these Terms and shall not limit the Company from pursuing any additional or alternative remedies provided at law.
15.5 Any outstanding Subscription Fees shall become immediately due and payable to the Company upon termination by You pursuant to clause 15.4.
15.6 The Company may, at any time upon written notice to You, terminate its obligations under these Terms in whole or in part for convenience, subject to a refund of the Subscription Fees paid by You in advance in an amount prorated against the portion of the Subscription term remaining as of the effective date of termination.
15.7 Clause 6 (Fees), 9 (Limitation of Liability) and 14 (Mediation and Dispute Resolution) and any other terms that, by their nature, should continue to apply, will survive any termination or expiration of this Agreement.
15.8 If Your User Account or this Agreement are terminated for any reason, then You may not, without the Company’s consent (in its absolute discretion), create any further accounts with the Company and the Company may terminate any other accounts You operate.
16. FORCE MAJEURE
16.1 Neither party is liable to the other party in respect of the results of any delay or failure to perform its obligations pursuant to these Terms if such delay or failure is caused by an event of Force Majeure.
16.2 The performance of the obligations of a party will be suspended for the period of an event of Force Majeure.
16.3 If there is a delay or failure by You to perform Your obligations under these Terms and Conditions due to an event of Force Majeure exceeds forty-five (45) business days, the Company may immediately terminate these Terms on providing notice in writing to You.
17. GENERAL
17.1 This Agreement is governed by the laws of Victoria, Australia. To the extent that any action in court of law is permitted hereunder, each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
17.2 Any present or future legislation which operates to vary an obligation, right, power or remedy of a person in connection with these Terms is excluded, except to the extent that its exclusion is prohibited or rendered ineffective by law.
17.3 The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforceable.
17.4 You may not assign these Terms, whether directly or indirectly, expressly or by operation of law, including in connection with a merger or change of control, without the prior written consent of the Company, and any such attempted assignment shall be void and of no effect. the Company may assign these Terms without restriction. Subject to the foregoing, these Terms and Conditions shall be binding on the parties and their respective successors and permitted assigns.
17.5 This Agreement sets out the entire understanding and agreement between You and the Company with respect to its subject matter.
17.6 The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. The Company’s waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.