Last Updated and Effective as of: November 8, 2021
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF EACH SITE. BY ACCESSING OR USING A SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE ANY SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITES.
- Changes. We may, at any time and without liability, suspend, modify, or discontinue all or part of the Services (including access to the Site via any third-party links). We encourage you to check our Site periodically for the most current Service offerings. Similarly, we may update the Content, including descriptions and specifications about Products or Services, and we reserve the right to remove any Content at any time, for any reason, in our sole discretion, and without notice. With Jéan will have no liability for any change in the Services, or any suspension or termination of your access to Services.
We also reserve the right to change these Terms at any time by notifying you of such changes by any reasonable means, including by posting the revised Terms on the Site. The “Last Updated” legend above indicates when these Terms were last changed. At our discretion, we may also notify you of certain changes by sending you an email to the email address provided to With Jéan. Your continued use of the Services, including purchasing Products from us, following any changes to these Terms will indicate your acknowledgement of such changes and agreement to be bound by the revised Terms. Any changes to the Terms will not apply to any dispute between you and us that arises prior to the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes. If you do not agree with the new Terms, you may no longer access or use the Services.
- Sales. If you purchase a Product through the Services, the purchase price for such Product (“Purchase Price”) will be equal to the purchase fee, applicable taxes and shipping and delivery charges listed on the Service for the applicable Product at the time of purchase. With Jéan, at its discretion and without notice, reserves the right to alter the price of the Product in view of the amount or availability of any discount, or the availability of any particular item. You authorize us (or our third-party payment processor) to change you Payment Method for the Purchase Price when you purchase Products and we will charge your Payment Method the amount of the Purchase Price. We do not make, and expressly disclaim, any warranties of any kind with respect to any Product that you purchase, and such Product is provided on an “AS IS” basis.
- Shipping. Please review our Shipping Policy at Shipping & Delivery – With Jéan (withjean.com).
- Returns. Please review our Return Policy at Terms & Conditions – With Jéan (withjean.com).
- Ownership. All Content (defined below) included on this Site is and shall continue to be the property of With Jéan or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights (“IP”). Any copying, redistribution, use or publication by you of any such Content or any part of the Site is prohibited, except as expressly permitted in these Terms. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this Site.
- Intended Audience. The Sites are intended for adults only. The Sites are not intended for any children under the age of 13.
- Trademarks. With Jéan™ and others are either pending trademarks or registered trademarks of With Jéan. Other product and company names mentioned on a Site may be trademarks of their respective owners.
- Site Use. With Jéan grants you a limited, revocable, nonexclusive license to use this site solely for your own personal use and not for any commercial use, republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the Site, reverse engineer or break into the Site, or use materials, products or services in violation of any law. The use of this website is at our discretion and we may terminate your use of this Site at any time.
- Content. Certain materials may be displayed or performed on the Sites (including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”)). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. With Jéan reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence) or for no reason at all.
- User Submissions. We may allow you and other users in our discretion to upload, post, or otherwise share to a Site Content, such as but not limited to photos, videos, audio files, feedback, comments, questions, or other information (collectively, “User Submissions”), all subject to other applicable provisions of these Terms. You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using the Sites, and you represent and warrant that you have all rights necessary to contribute your User Submissions in the manner in which you contribute them, including but not limited to all IP rights. You hereby grant to With Jéan an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, and transferable license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Submissions, including all associated IP, and to grant sublicenses of the foregoing rights. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. For clarity, the foregoing license grant to With Jéan does not affect your ownership of or right to grant additional (other than exclusive) licenses to the material in your User Submissions, unless otherwise agreed in writing. With Jéan may retain your Content even if you are no longer using the Services but is not required to provide copies of your Content to you. With Jéan may permanently delete or erase your Content or suspend your access to your User Submissions through the Services at any time and for any reason.
- Your Warranty Regarding Your User Submissions and Use of Sites. You warrant, represent and agree that you will not contribute any User Submissions or otherwise use the Services in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, embarrassing, bullying, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of With Jéan; (v) contains a virus, Trojan horse, worm, time bomb, back door, or other harmful computer code, file, or program; (vi) jeopardizes the security of any With Jéan’s Site, software, equipment, system, other user, or other resource; (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Mail list, Listserv, or any form of auto-responder or “spam” on the Site, or any processes that otherwise interfere with the proper working of the Sites (including by placing an unreasonable load on any Site’s infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Sites or any of With Jéan’s other services.
- Responsibility for Content. All User Submissions that you publicly post or privately transmit through the Sites are your sole responsibility, and With Jéan will not be liable for any errors or omissions in any Content. With Jéan cannot guarantee the identity or intentions of any other users with whom you may interact in the course of using the Sites or the truth, accuracy, nature, or authenticity of any of their User Submissions. You acknowledge that all User Submissions accessed by you using the Sites is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you or others may interpret and use the Content or what actions you or others may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
- Third Party Website Links and Referrals, Products and Services. The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors, and they and their products and services (“Third Party Products and Services”) are not under our control. With Jéan provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites, Referred Vendors or Third Party Products and Services. Your use of these Third Party Sites, Referred Vendors, and Third Party Products and Services is at your own risk.
- Linking to the Website and Social Media Features. You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
- This Website may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on this Website.
- Send e-mails or other communications with certain content, or links to certain content, on this Website.
- Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
- You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
- Link to any part of the Website other than the homepage.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
- Release Regarding Third Parties. With Jéan is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. With Jéan hereby disclaims and you hereby discharge, waive and release With Jéan and its licensors and suppliers from any past, present, and future Claims, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- Couriers. With Jéan may from time to time engage third-party couriers (“Couriers”) to facilitate delivery of Products. Couriers are independent contractors and not employees, partners, agents, joint venturers, or franchisees of With Jéan. With Jéan shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. If you opt to have Products delivered by Courier, you agree to bear responsibility for receipt of Products shipped to the delivery location specified at the time of check out. With Jéan highly recommends that you provide a secure location where you can physically receive the Product(s), and With Jéan does not bear liability for Products left unattended, by you, a Courier, or otherwise. You hereby acknowledge that With Jéan does not supervise, direct, control, or monitor a Courier’s provision of services. Any interactions or disputes between you and a Courier are solely between you and that Courier. With Jéan and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.
- Ratings and Reviews. Our Services may allow you to rate and post reviews of Products. Any ratings or reviews provided by you are considered User Submissions and are governed by these Terms. Ratings and reviews are not endorsed by With Jéan, and do not represent the views of With Jéan or any affiliate or partner of With Jéan. With Jéan does not assume liability for any ratings and reviews or for any claims, liabilities, or losses resulting from or relating to ratings or reviews. We reserve the right to modify, remove, or exclude any rating and/or review for any reasons at any time, without notice.
- Consent to Receive Periodic Messages. By using the Services, you consent to receiving communications from us, including informational test message to your phone number that you provide by any means, including through an automated telephone dialing system. You represent and warrant that you are the owner of the phone number that you provide to With Jéan. Standard text messaging and data rates charged by your mobile carrier may apply to text messages we sent you, and any and all such charges, fees, taxes, or costs are your sole responsibility. You may opt out of receiving communications by following the unsubscribe procedures we provide to you. In the case of text messages, you may opt out by replying “STOP” to a text message you receive from us of by emailing email@example.com. You acknowledge that opting out of receiving communications may impact your use of the Services. Please note also that you will need to opt out of communications for each Service that you may sign up for. You agree to indemnify and hold With Jéan harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
- Compliance with Laws. You agree to comply with all applicable laws regarding your use of the Site. You further agree that information provided by you is truthful and accurate to the best of your knowledge.
- Security. With Jéan cares about the integrity and security of your personal information. With Jéan, however, does not represent, warrant, guaranty or covenant that no unauthorized third parties will defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Access Outside Certain Countries. Although the Sites are accessible through the internet in many countries in the world, you understand and accept that the Sites are not designed for use, and you agree not to provide any personally identifiable information to us, whether or not through the Sites but including through contributing User Submissions, if you reside outside of the United States. Some or all of the features of the Sites may not work or be appropriate for use in other countries. Without limiting the generality of the foregoing, you are not authorized to access the Services outside of the United States if you are a resident of a foreign country that observes privacy laws, rules, and regulations that are more stringent than those promulgated in the United States. If you choose to access the Sites from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local Law in your country, and you agree to defend, indemnify and hold harmless With Jéan from and against any and all claims, demands, suits, proceedings, losses, liabilities, damages, settlements, fines, penalties, costs and expenses (including attorney’s fees) (collectively, “Claims”) arising from or relating to any breach by you of this section. To the extent permissible by law, With Jéan accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites, With Jéan Products or Services outside the United States. In any event, you will be bound by these Terms wherever you access or use the Sites or Services.
- Indemnification. You agree to defend, indemnify, and hold harmless With Jéan and our affiliates, and our and their directors, officers, shareholders, partners, employees, representatives, agents, successors and assigns from and against any Claims arising out of or related to your violation of these Terms or your use of any Site.
- Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way without With Jéan’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations (in whole or in part) without your consent or notice to you.
- Disclaimer. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE INFORMATION ON THE SITE, SERVICES, PRODUCTS, CONTENT, AND ANY THIRD PARTY MATERIALS THAT ARE PROVIDED BY WITH JÉAN (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS IS," "AS AVAILABLE" BASIS. YOU AGREE THAT USE OF THE SITES IS AT YOUR SOLE RISK. WITH JÉAN DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY THAT THE SITES WILL BE ACCURATE, UNINTERRUPTED, TIMELY, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WITH JÉAN OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SITE SHALL BE TO DISCONTINUE USING THE SITE.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL WITH JÉAN BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), ARISING OUT OF OR IN ANY WAY RELATING TO THE SITES, YOUR SITE USE, OR ANY CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR CONTENT IS TO CEASE ALL OF YOUR SITE USE.
You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms that directly conflict with such laws may not apply to you.
- Applicable Law. You agree that the laws of the state of California, without regard to conflict of laws provisions will govern these Terms and Condition of Use and any dispute that may arise between you and With Jéan or its affiliates.
- ARBITRATION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY.
- Agreement to Arbitrate Disputes. Except as provided in Section 22(h), below, you and With Jéan agree that any dispute, claim or controversy arising out of or relating in any way to the Products and/or Services, these Terms, the Product Terms and Conditions, the Limited Warranty, the EULA or this Arbitration Agreement shall be determined by binding arbitration by a single arbitrator in accordance with this Section 29 (“Arbitration Agreement”). Arbitration is generally more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Where so authorized, arbitrators can award the same damages and relief that a court can award. BY AGREEING TO THESE TERMS, YOU AGREE THAT THE U.S. FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT, AND THAT YOU AND WITH JÉAN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Arbitration Agreement shall survive termination of the Terms.
- Arbitration Notice. If you elect to seek arbitration, you must first send to With Jéan, by certified mail, a written notice of your claim (“Arbitration Notice”). The Arbitration Notice to With Jéan must be addressed to: With Jéan Pty Ltd – Legal Department, 3/6 Fortitude Crescent, Burleigh Heads 4220, Queensland, Australia. Except as provided below, if With Jéan initiates arbitration, it will send a written Arbitration Notice to the email address used for your With Jéan account. An Arbitration Notice, whether sent by you or by With Jéan, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If With Jéan and you do not reach an agreement to resolve the claim within 30 days after the Arbitration Notice is received, you or With Jéan may commence an arbitration proceeding by thereafter filing a copy of the Demand with the American Arbitration Association (“AAA”) at the following AAA office nearest to the hearing location specified below (“Arbitration Notice Address”).
- Filing Fees. You may download or copy a form Arbitration Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after With Jéan receives notice from the AAA that you have commenced arbitration by filing your Demand at the Arbitration Notice Address, With Jéan will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
- American Arbitration Association. The arbitration will be governed by the Consumer Arbitration Rules (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879 during normal business hours, or by writing to the Arbitration Notice Address. Unless otherwise agreed to, all arbitration proceedings shall be held in English. The arbitrator is bound by the terms of this Agreement which shall govern over the AAA Rules and the FAA. Except as provided in Section 22(h), below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement. Unless With Jéan and you agree otherwise, any arbitration hearings will take place in Los Angeles, California.
- Telephonic/In-Person Hearing. If the Demand is for US$10,000 or less, the arbitration will be conducted, at the option of the party that made the first Demand, solely on the basis of documents submitted to the arbitrator, or through a telephonic hearing, or through a hearing by videoconference . If the Demand exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall have the authority to grant motions dispositive of all or part of any claim, to award monetary damages, and to grant any non-monetary remedy or relief available to a single individual or entity (and not a class or as a private attorney general) under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. For the avoidance of doubt, the foregoing shall not prevent a party from submitting to a court of law information necessary to enforce this Agreement or an arbitration award, or to seek injunctive or equitable relief as may be permitted by these Terms.
- Claims Only In Individual Capacity. YOU AND WITH JÉAN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and With Jéan agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable Law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- Changes to Arbitration Agreement. If With Jéan makes any changes to this Arbitration Agreement (other than a change to its Arbitration Notice Address or other contact information), you may reject any such change by sending us written notice within 30 days of the change to With Jéan at its address specified in Section 29(b). By rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement, as modified by any changes you did not reject.
- Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the provisions of the Arbitration Agreement, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s IP or confidential information shall not be subject to the Arbitration Agreement (“IP Claims”). Except for IP Claims, and notwithstanding the provisions of the Arbitration Agreement, either you or With Jéan may bring an individual action in small claims court. In all court cases, you agree to submit to the exclusive jurisdiction and venue of the state and federal courts in and for Los Angeles County, California, and consent to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes.
- Copyrights and Copyright Agent. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe you copyright, you (or your agent) may send to With Jéan a written notice by mail or email requesting that With Jéan remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to With Jéan a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See www.copyright.gov for details. Notices and counter-notices must be sent in writing to With Jéan as follows: by email to firstname.lastname@example.org.
- Severability. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid under applicable Law in such jurisdiction, such provision or part thereof shall be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect, and will be deemed to not form part of the contract between us but only in such jurisdiction. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect in all other jurisdictions.
- Taxes. You will be responsible for paying, withholding, filing, and reporting all federal, state, and local good taxes, duties, customs, levies, and other governmental assessment associated with your activity in connection with the Services, provide that With Jéan may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.
- Waiver. The failure of With Jéan to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. Any waiver of these Terms by With Jéan must be in writing and signed by an authorized representative of With Jéan.
- Delays. There may be delays, omissions, or inaccuracies in the Services, including the Content. The Services may become unavailable due to maintenance or malfunction of computer equipment or other reasons. You agree that With Jéan is not, and will not be, liable for any such delays, omissions, inaccuracies, or unavailability.
- Termination. We may terminate these Terms at any time, with or without notice, for any reason.
- Relationship of the Parties. Nothing contained in these Terms or your use of a Site shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
- Electronic Communications. You are communicating with With Jéan electronically when you use the Sites or send an email to With Jéan. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Force Majeure. With Jéan will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event or circumstance beyond our reasonable control, including, without limitation, acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riots, actual or threatened acts of terrorism, war, fire, explosion, storm, flood, earthquake or other natural disaster, loss of power or connectivity, interruption or delay in transportation or travel, equipment failure, accident, epidemic or other widespread disease, new government restrictions or regulations, shelter-in-place orders, quarantines, government shutdown, malfeasance or breach by third-party suppliers.
- Interpretation. Headings are for convenience only and are not to be used in the interpretation of this Agreement. No part of these Term shall be construed in favor of, or against, a party as a consequence of a party having had a greater role in the preparation or drafting thereof, but shall be construed as if the language were mutually drafted by both parties with full assistance of counsel.
- Copyrights. These Terms, and all content (whether or not a work made for hire) for which With Jéan owns the copyright, including on any Site or as provided through any Product or Service, is protected by applicable U.S. and foreign law. Copyright © 2021, With Jéan Pty Ltd. All rights reserved. Any unauthorized use may be subject to prosecution.
- Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Products and Services are the property of With Jéan or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of With Jéan or such respective holders. With Jéan reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
- Notice to New Jersey Consumers. If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary, or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (b) the limitation of liability for loss profits or loss of misuse of any data (for example, to the extent unenforceable under New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitation of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify With Jéan (for example, such indemnity is prohibited under New Jersey law); and (e) the New York governing law (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
- Notice to Australian Consumers. As an consumer residing in Australia, the following terms apply and override any inconsistent terms in the Terms.
a. Paragraph 25 – Disclaimers. The Warranty Disclaimer included within Paragraph 25 is modified by adding the following:
“However, the Site, Content, and the materials, products, and services on this Site come with certain guarantees that cannot be excluded for the benefit of Australian customers under Australian consumer law (“ACL”), including guarantees as to the acceptable quality and fitness of purpose of products. Nothing in these Terms will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by the ACL and which by law cannot be excluded, restricted or modified, even if any other term of these Terms would otherwise suggest that this might be the case.”
46. Notice to Canadian Consumers.
a. Paragraph 1 – Changes. Paragraph 1 titled, “Changes” is qualified by the following:
“(a) With Jéan must send to you, at least thirty (30) days before the amendment comes into force, a written notice drawn up clearly and legibly, setting out the new clause and the date of the coming into force of the amendment; and
“(b) you may refuse the amendment and rescind or, in the case of a contract involving sequential performance, cancel the contract without cost, penalty or cancellation indemnity by sending With Jéan a notice to that effect no later than thirty (30) days after the amendment coms into force, if the amendment entails an increase in your obligations or a reduction in With Jéan’s obligations.”
b. Multiple Sections. The terms set forth in the section titled “Physical Activity”, “Warranty Disclaimer”, “Indemnification/Limitation of Liability”, and “Limitation of Liability” are qualified by the following:
“Consumer protection laws in some jurisdictions, including Quebec, do not allow for the limitations and exclusions of warranties on purchased products. If these laws apply to you, the exclusions or limitations in the following section may not apply: Physical Activity, Warranty Disclaimer, Indemnification/Limitation of Liability, and Limitation of Liability.”
c. Paragraphs 28 and 29. These sections are modified by adding the following at the beginning of the section:
“Consumer protection laws in some jurisdictions, such as Quebec, might require that your agreement be governed by the laws of your jurisdiction and heard by competent courts in your jurisdiction. In addition, such laws may not allow you to waive your right to be part of a class action or to limit your time limitation to commence legal proceedings. If these laws apply to you, the following limitations may not be applicable.”
47. Notice to French Consumers.
a. Paragraph 31. This paragraph is deleted in its entirety and replaced with the following:
“If you believe that your work has been improperly copied to the Site, such that it constitutes infringement, please provide us with the following information:
(1) date of the notification;
(2) if the claimant is a natural person: name, surname, profession, address, nationality, place and date of birth;
(3) if the claimant is a legal person: name, form, registered office and the entity representing it for legal purposes;
(4) name and address of the recipient, or if a legal person, its name and registered office;
(5) a description of the facts at issue and the precise location;
(6) the grounds on which the content should be withdrawn, including relevant legal provisions and justification of facts; and
(7) a copy of the correspondence sent to the author or editor of the litigious information or activity requesting their interruption, withdrawal or modification or an explanation that the author or editor could not be contacted.”
b. Paragraph 23 – Indemnification. This paragraph is modified as follows:
c. Paragraph 28 – Applicable Law. This paragraph is deleted in its entirety and replaced with the following:
“Choice of Law/Jurisdiction. Nothing in this paragraph shall deprive you of the protection afforded to consumers by the mandatory rules of law of the country in which you live. You agree that the Site, Terms, and any dispute between you and With Jéan shall be governed in all respects by Dutch law, without regard to choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except where prohibited and without limitation to any statutory rights for consumers, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to the Site (including but not limited to the purchase of With Jéan products) shall be resolved and exclusively in the competent courts of Amsterdam, the Netherlands. If you have a complaint please contact us. If you feel your complaint is not adequately addressed you can – but are not obligated to- use the Online Dispute Resolution (“ODR”) platform that you can access through http://ec.europa.eu/odr. In addition, you have the right to initiate a mediation procedure by contact the mediator(s) as follows: Association des médiateurs européens (197, Boulevard Saint-Germain, 75007 PARIS, telephone: 09 53 01 02 69), http://www.mediationconso-ame.com/. The mediator(s) will attempt to, independently and impartially, reach an amicable resolution of the dispute. In case of mediation, each party is free to accept or reject the solution proposed by the mediator.”
48. Contact Information.
With Jéan Pty Ltd
3/6 Fortitude Crescent
Burleigh Heads 4220