TERMS OF USE
Introduction
This document is an electronic record in terms of Information
Technology Act, 2000 and rules there under as applicable. This
electronic record is generated by a computer system and does not
require any physical or digital signatures.
This document is published in accordance with the provisions of Rule
3 (1) of the Information Technology (Intermediaries guidelines)
Rules, 2011 that require publishing the rules and regulations,
privacy policy and terms of use for access or usage of this
mobile application (“App”).
The website is owned and controlled by Surfboats Solutions
Private Limited, a company incorporated under the Companies Act, 2013
with its registered office at ANM-39F, Akashneem Marg, DLF Phase -II,
Gurgaon, Haryana -122002 IN, India (“Smytten”).
These terms of use (“Terms”), including the various policies
incorporated by reference in these Terms, govern your access to and
use of this website and the underlying services provided by us through
the website, including our SMS, APIs, email notifications,
applications, buttons, widgets, ads, commerce services, and our other
covered services that may link to these Terms (collectively, the
“Services”), and any information, text, graphics, photos or other
materials uploaded, downloaded or appearing on or as a part of the
Services (collectively referred to as “Content”). Your access to and
use of the Services, however accessed, constitutes your agreement to
be bound by these Terms, which establishes a contractual relationship
between You and Smytten. When You use any of the Services provided by
Us through the App, you will be subject to the rules, guidelines,
policies, terms, and conditions applicable to such Service, and they
shall be deemed to be incorporated into and shall apply in addition to
these Terms. If you transact on our website, you shall be subject to
the policies that are applicable for such transaction.
By accessing the website, these terms will automatically apply to
you. If you have any questions regarding our services, you can email
us at care@smytten.com
Changes to the Agreements
We reserve the right, at our sole discretion, to change, modify,
add or remove portions of these Terms, at any time without any
prior written notice to you. It is your responsibility to review
these Terms periodically for updates / changes. Your continued
use of the website following the posting of changes will mean
that you accept and agree to the revisions. As long as you comply
with these terms, we grant you a personal, non-exclusive,
non-transferable, limited privilege to access and use the
services.
In the event a special feature with its own terms and conditions is
offered, the same shall apply in addition to these terms. In case of a
conflict of the terms and conditions of such special feature with
these terms, the terms specific to the special feature shall
prevail.
In these Terms, unless the context otherwise requires, references
to:
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“Buyer”, shall mean a User who has agreed to become a buyer by
using the Services to place an order for Samples or Products;
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“Products” shall mean products listed on the website [by Sellers]
as a part of the Services, for purchase by Buyers;
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“Samples” shall mean products listed on the website [by Sellers] as
a part of the Services, to be provided free of cost (with applicable
shipping charges) and on a sampling basis;
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“Seller” shall mean a user who has executed a [merchant agreement]
with us for the listing of products manufactured by it on the
website, to be offered for sale or made available for purchase or
for delivery on a sampling basis and free of cost, as a part of the
services to the prospective Buyers, and who has agreed to register
on the website as a seller for this purpose;
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“We”, “we”, “Us”, “us” or “Smytten”, shall mean Surfboats Solutions
Private Limited, its affiliates, permitted assigns and partners, and
the terms “Our” and “our” shall be construed accordingly; and
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“You”, “you”, “User” or “user”, shall mean any natural or legal
person who has agreed to become an end user by accessing the
Contents of the website, or using the website or the Services
offered through the website, by providing some personal information
(more particularly described in the Privacy Policy and including but
not limited to your name, address, mobile phone number and age, as
well as at least one valid payment method (either a credit card or
accepted payment partner) while registering on the website
(“Registration Data”), and the terms “Your” and “your” shall be
construed accordingly.
Membership Eligibility
Use of the Services is available only to persons who can form legally
binding contracts under Indian Contract Act, 1872. If you
are a minor, i.e., under the age of 18 years, or are otherwise
‘incompetent to contract’ under the Indian Contract Act, 1872, you are
not eligible to use the Services and you shall not register as a User
of or transact on the App. If minors wish to transact on the App,
all transactions shall be required to be made by their legal
guardians/parents who must be registered Users of the App. We reserve
the right to terminate your membership and/or refuse to provide
you with access to the Services if it is brought to our notice or
if it is discovered that you are under the age of 18 years or are
‘incompetent to contract’.
The Services
The website is only a medium that provides access to a technology
platform, managed by Smytten, which enables Users to meet and interact
with one another for their transactions. It is a marketplace for
the listing of Products and Samples and offering for sale various
Products, by the Sellers, and for the purchase of Products and
ordering of Samples, by the Buyers. Smytten is an intermediary for all
such transactions and is not a party to nor controls in
any manner any transaction between the website Users. You agree
that Smytten is only providing a platform for communication and it is
agreed that any contract for sale or delivery of any of the Products
or Samples, as may be applicable, shall be a strictly bipartite
contract between the Seller and the Buyer, for which Smytten will only
be fulfilling the delivery of the relevant Product or Sample, strictly
on behalf of the Seller. Smytten, its affiliates, permitted assigns or
partners are not liable for anything whatsoever that is undertaken
using this platform and:
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All commercial/contractual terms are offered by and agreed to
between Buyers and Sellers alone.
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The commercial/contractual terms in relation to Products include,
without limitation, the price, shipping costs, payment methods,
payment terms, date, period and mode of delivery, warranties
related to Products and after sales services related to Products.
Smytten does not have any control in respect of the offering or
acceptance of such commercial/contractual terms between the Buyers
and Sellers.
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Smytten does not make any representation or warranty as to
specifications (such as quality, value, saleability, etc) of
the Products proposed to be offered for sale and purchased or
ordered as Samples, through the App. Smytten does in any manner
endorse the sale or purchase of any Products or Samples through the
website. Smytten accepts no liability for any errors or omissions,
whether on behalf of itself or third parties.
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Smytten is not responsible for any non-performance or breach of any
contract entered into between Buyers and Sellers. Smytten
cannot and does not guarantee that the concerned Buyers and/or
Sellers will perform any transaction concluded through the
website. Smytten shall not and is not required to mediate or resolve
any dispute or disagreement between Buyers and Sellers.
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Smytten does not make any representation or warranty as to the
item-specifics (such as legal title, creditworthiness,
identity, etc.) of any of its users. You are advised to
independently verify the bona fides of any user that You choose
to deal with through the App and use Your best judgment in that
regard.
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Smytten does not hold any right, title or interest over the
Products or Samples nor shall Smytten have any obligations or
liabilities in respect of any transaction or contract
entered between Buyers and Sellers.
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Smytten shall provide logistics services wherein our delivery
partners shall deliver to the Buyers, the Products and Samples
ordered through the App by the Buyers.
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Subject to Clause 3.8 above, Smytten does not, at any point of time
during any transaction between the Buyer and the Seller through the
App, come into or take possession of any of the Products offered by
the Seller nor does it, at any point, gain title to or have any
right or claim over the Products offered by the Seller to the Buyer.
It does, however, provide warehousing services for Samples and
products as a part of its Services to the Sellers but does not, in
any point in time, gain title to or have any right or claim over the
Samples or products offered by the Sellers to the prospective
Buyers.
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You shall independently agree upon the manner and terms and
conditions of delivery, payment, insurance etc. with the
Seller(s) that You transact with.
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Disclaimer: In the event the pricing on any Product is
reflected incorrectly on the website due to some technical
issue, typographical error or the Product information published on
the website is incorrectly displayed or provided by the Seller, the
Seller may cancel your order.
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You release and indemnify Smytten and/or any of its officers
and representatives from any cost, damage, liability or other
consequence of any of the actions of all Users of the website
and specifically waive any claims that you may have in this
behalf under any applicable law. Notwithstanding its
reasonable efforts in that behalf, Smytten cannot take
responsibility or control the information provided by the Users
which is made available through the website. You may find any
other User's information to be offensive, harmful, inconsistent,
inaccurate, or deceptive. Please use caution and practice safe
trading when using the Services. Please note that there could be
risks in dealing with underage persons or people acting under
false pretense.
Privacy Policy
Any information that you or other Users provide to Smytten is subject
to our Privacy Policy, which governs our collection and use of your
information. You understand that through your use of the Services, you
have read and fully understand the Privacy Policy of Smytten and you
consent to the collection and use (as set forth in the Privacy Policy)
of this information, including the transfer of this information to
third parties for storage, processing and use by Smytten. As part of
providing you the Services, we may need to provide you with certain
communications, such as service announcements and administrative
messages via e-mail and short messaging service (SMS) or any other
mode of communication, electronic or otherwise. These communications
are considered part of the Services and your account, which you may
not be able to opt-out from receiving.
Tip: You can control most communications from the Services, including
notifications about orders placed by you, promotions, advertisements,
comments or other activity on any Content posted by you and periodical
updates from us, provided to you as and when required. Please see your
settings for email and mobile notifications for more. The user hereby
consents, expresses and agrees that he has read and fully understands
the Privacy Policy of Smytten. The User further consents that the
terms and contents of such Privacy Policy are acceptable to him.[1]
Limited Use
The User agrees and undertakes not to reverse engineer, modify, copy,
distribute, transmit, display, perform, reproduce, publish, license,
create derivative works from, transfer, or sell any information or
software obtained through the App. Limited reproduction and copying of
the Content is permitted provided that Smytten’s name is stated as the
source and prior written permission of Smytten is sought. For the
removal of any doubt, it is clarified that unlimited or complete
reproduction, copying of the content for commercial or non-commercial
purposes and unwarranted modification of data and information within
the content of the website is not permitted.
Throughout these Terms, Smytten’s prior written consent means a
communication issued by Smytten’s legal department, specifically
in response to Your request, and specifically addressing the
activity or conduct for which You seek authorisation.
Use of the Services
You agree, undertake and confirm that your access to and use of the
Services shall be strictly governed by the following binding
principles:
You shall not host, display, upload, modify, publish, transmit,
update or share any information which:
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belongs to another person and to which You does not have any right
to;
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is grossly harmful, harassing, blasphemous, defamatory,
obscene, pornographic, pedophilic, libellous, invasive of
another's privacy, hateful, or racially, ethnically
objectionable, disparaging, relating or encouraging
money laundering or gambling, or otherwise unlawful in any
manner whatever; or unlawfully threatening or unlawfully
harassing including but not limited to “indecent representation
of women” within the meaning of the Indecent Representation of
Women (Prohibition) Act, 1986;
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is misleading in any way;
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is patently offensive to the online community, such as sexually
explicit content, or content that promotes obscenity,
pedophilia, racism, bigotry, hatred, or physical harm of any
kind against any group or individual;
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harasses or advocates harassment of another person;
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involves the transmission of “junk mail”, “chain letters”, or
unsolicited mass mailing or “spamming”;
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promotes illegal activities or conduct that is abusive,
threatening, obscene, blasphemous, politically or religiously
charged, defamatory or libellous;
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infringes upon or violates any third party's rights including, but
not limited to, intellectual property rights, rights of privacy
(including without limitation unauthorised disclosure of a person's
name, email address, physical address or phone number) or
rights of publicity);
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promotes an illegal or unauthorised copy of another person's
copyrighted work, such as providing pirated computer programs
or links to them, providing information to circumvent
manufacture-installed copy-protect devices, or providing pirated
music or links to pirated music files;
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contains restricted or password-only access pages, or hidden pages
or images (those not linked to or from another accessible
page);
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provides material that exploits people in a sexual, violent or
otherwise inappropriate manner or solicits personal information
from anyone;
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provides instructional information about illegal activities such as
making or buying illegal weapons, violating someone's privacy,
or providing or creating computer viruses;
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contains video, photographs, or images of another person (with a
minor or an adult).
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tries to gain unauthorised access or exceeds the scope of
authorised access to any of the Services or to profiles, blogs,
communities, account information, bulletins, friend request, or
other areas of the App or solicits passwords or
personal identifying information for commercial or unlawful
purposes from other users;
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engages in commercial activities and/or sales without our prior
written consent such as contests, sweepstakes, barter,
advertising and pyramid schemes, or the buying or selling of
“virtual” products related to the Services;
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solicits gambling or engages in any gambling activity which we, in
Our sole discretion, believes is or could be construed as being
illegal;
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interferes with another User's use and enjoyment of the
Services;
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refers to any content, website or URL that, at our sole discretion,
contains material that is inappropriate for the App, contains
content that would be prohibited or violates the letter or spirit of
these Terms;
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infringes any patent, trademark, copyright or other proprietary
rights or third party's trade secrets or rights of publicity or
privacy or shall not be fraudulent or involve the sale of
counterfeit or stolen Products or Samples;
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violates any law for the time being in force;
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deceives or misleads the addressee/ users about the origin of such
messages or communicates any information which is grossly
offensive or menacing in nature;
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impersonate another person;
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contains software viruses or any other computer code, files or
programs designed to interrupt, destroy or limit the
functionality of any computer resource; or contains any trojan
horses, worms, time bombs, cancelbots, easter eggs or other
computer programming routines that may damage, detrimentally
interfere with, diminish value of, surreptitiously intercept or
expropriate any system, data or personal information;
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threatens the unity, integrity, defence, security or sovereignty of
India, friendly relations with foreign states, or public order
or causes incitement to the commission of any cognizable offence or
prevents investigation of any offence or is insulting any other
nation;
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shall not be false, inaccurate or misleading;
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shall not, directly or indirectly, offer, attempt to offer, trade
or attempt to trade in any item, the dealing of which is
prohibited or restricted in any manner under the provisions of any
applicable law, rule, regulation or guideline for the time
being in force.
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shall not create liability for us or cause us to lose (in whole or
in part) the services of our internet service provider (“ISPs”)
or other suppliers;
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You shall not use any program, algorithm or methodology, or any
similar or equivalent manual process, to copy or, in any way
reproduce or circumvent the navigational structure or presentation
of the Content on the App, to obtain or attempt to obtain any data
or information about the App or the Content through any means other
than that which has been purposely made available through the App.
We reserve our right to bar any such activity.
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You shall not attempt to gain unauthorised access to any portion or
feature of the App, or any other systems or networks connected to
the App, by hacking, password 'mining' or any other illegitimate
means.
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You shall not probe, scan or test the vulnerability of the App or
any network connected to the App nor breach the security or
authentication measures on the App or any network connected to the
App. You may not reverse look-up, trace or seek to trace any
information on any other User of or visitor to App, or any other
customer, including any account on the App not owned by You, to its
source, or exploit the App or any service or information made
available or offered by or through the App, in any way where the
purpose is to reveal any information, including but not limited to
personal identification or information, other than Your own
information, as provided for by the App.
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You shall not make any negative, denigrating or defamatory
statement(s) or comment(s) about us or the brand name or domain name
used by us including the terms Smytten and smytten.com, or otherwise
engage in any conduct or action that might tarnish the image or
reputation of Smytten or any Seller on the platform or otherwise
tarnish or dilute any of Smytten’s trade or service marks, trade
name and/or goodwill associated with such trade or service marks,
trade name as may be owned or used by us. You agree that you will
not take any action that imposes an unreasonable or
disproportionately large load on the infrastructure of the App or
Smytten’s systems or networks, or any systems or networks connected
to Smytten.
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You agree not to use any device, software or routine to interfere
or attempt to interfere with the proper working of the App or any
transaction being conducted on the App, or with any other person's
use of the App.
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You may not forge headers or otherwise manipulate identifiers in
order to disguise the origin of any message or transmittal you send
to us on or through the App or any service offered on or through the
App. You may not pretend that you are, or that you represent,
someone else, or impersonate any other individual or entity or
access the App through another user's account, unless authorised to
do so
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You may not use the App or any content for any purpose that is
unlawful or prohibited by these Terms, or to solicit the performance
of any illegal activity or other activity which infringes the rights
of Smytten and/or others.
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You shall, at all times, ensure full compliance with the applicable
provisions of the Information Technology Act, 2000 and rules
thereunder as applicable and as amended from time to time and also
all applicable domestic laws, rules and regulations (including the
provisions of any applicable exchange control laws or regulations in
force) and international laws, foreign exchange laws, statutes,
ordinances and regulations (including, but not GST, custom duty,
local levies) regarding your use of the Services and your listing,
purchase, solicitation of offers to purchase, or offers of sale in
respect of Products or Samples, as may be applicable. You shall not
engage in any transaction on any Product or Sample, which is
prohibited by the provisions of any applicable law including
exchange control laws or regulations for the time being in
force.
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You agree to grant us a non-exclusive, worldwide, perpetual,
irrevocable, royalty-free, sub-licensable (through multiple tiers)
right to exercise the copyright, publicity, database rights or any
other rights you have in your information, or in any media now known
or not currently known, with respect to your information. We will
only use your information in accordance with these Terms and the
Privacy Policy applicable to your use of the Services
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From time to time, you shall be responsible for providing
information relating to the products or services proposed to be sold
by you. In this connection, you undertake that all such information
shall be accurate in all respects. You shall not exaggerate or over
emphasise the attributes of such products or services so as to
mislead other users in any manner.
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You shall not engage in advertising to, or solicitation of, other
users of the Services to buy or sell any products or services,
including, but not limited to, products or services related to those
being displayed on the App or related to us. You may not transmit
any chain letters or unsolicited commercial or junk email to other
Users via the App. It shall be a violation of these Terms to use any
information obtained from the App in order to harass, abuse, or harm
another person, or in order to contact, advertise to, solicit, or
sell to another person other than us without our prior explicit
consent. In order to protect our Users from such advertising or
solicitation, we reserve the right to restrict the messages or
emails which a user may send to other Users in any 24-hour period to
a number which we deem appropriate in our sole discretion. You
understand that we have the right at all times to disclose any
information (including the identity of the persons providing
information or materials on the App) as necessary to satisfy any
law, regulation or valid governmental request. This may include,
without limitation, disclosure of the information in connection with
investigation of alleged illegal activity or solicitation of illegal
activity or in response to a lawful court order or subpoena. In
addition, we can (and you hereby expressly authorise us to) disclose
any information about You to law enforcement or other government
officials, as we, in our sole discretion, believe necessary or
appropriate in connection with the investigation and/or resolution
of possible crimes, especially those that may involve personal
injury.
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We reserve the right, but have no obligation, to monitor the
materials posted on the website. Smytten shall have the right to
remove or edit any content that in its sole discretion violates, or
is alleged to violate, any applicable law or either the spirit or
letter of these Terms. Notwithstanding this right, you remain solely
responsible for the content of the materials you post on the App and
in your private messages. Please be advised that such Content posted
does not necessarily reflect Smytten’s views. In no event shall
Smytten assume or have any responsibility or liability for any
Content posted or for any claims, damages or losses resulting from
use of Content and/or appearance of Content on the App. You hereby
represent and warrant that you have all necessary rights in and to
all Content which you provide and all information it contains and
that such Content shall not infringe any proprietary or other rights
of third parties or contain any libellous, tortious, or otherwise
unlawful information.
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It is possible that other users (including unauthorised users or
'hackers') may post or transmit offensive or obscene materials on
the App and that You may be involuntarily exposed to such offensive
and obscene materials. It also is possible for others to obtain
personal information about you due to your use of the App, and that
the recipient may use such information to harass or injure you. We
do not approve of such unauthorised uses, but by using the App You
acknowledge and agree that we are not responsible for the use of any
personal information that you publicly disclose or share with others
on the App. Please carefully select the type of information that you
publicly disclose or share with others on the App
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Your correspondence or business dealings with, or participation in
promotions of, advertisers found on or through the App, including
payment and delivery of related products or services, and any other
terms, conditions, warranties or representations associated with
such dealings, are solely between you and such advertiser. We shall
not be responsible or liable for any loss or damage of any sort
incurred as the result of any such dealings or as the result of the
presence of such advertisers on the App.
9. No
Compensation
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If the quality of any Products, information, or other material
purchased or obtained by you through the App did not meet the
Product specifications displayed on the App, no compensation will be
given other than the return and refund or exchange of the Product as
per these Terms. If the quality of any Samples ordered through the
App did not meet your expectations, no compensation will be given
other than the replacement of the Sample as per these Terms. The
Buyer cannot request compensation from Smytten for any reason,
including but not limited to: any variation in the finish or
appearance of the final Product or Sample; any delay in delivery
caused by unforeseen circumstances; any special, incidental,
indirect or consequential damage of any kind caused by a Product or
a Sample, including any reactions to skin or other body parts,
missed opportunities to avail certain discounts; any issue with our
delivery partners or their personnel, any voucher which got
deactivated due to the end of expiry date; unavailability of items
which the Buyer tried to purchase, etc.
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Unreasonable and unlawful requests for compensation, over and above
the entitled refund, will be treated as loss to business cases.
Smytten holds the rights to cancel orders and block accounts of such
customers without any prior notice.
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Contents Posted on the App
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All Content, whether publicly posted or privately transmitted, is
the sole responsibility of the person who originated such Content.
We may not monitor or control the Content posted via the Services
and, we cannot take responsibility for such Content. Any use or
reliance on any Content or materials posted via the Services or
obtained by you through the Services is at your own risk as Smytten
is merely an intermediary for the purposes of
these Terms.
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Except as expressly provided in these Terms, no part of the
Services and no part of the Content may be copied, reproduced,
republished, uploaded, posted, publicly displayed, encoded,
translated, transmitted or distributed in any way (including
“mirroring”) to the App or any other computer, server, application,
website or other medium for publication or distribution or for
any commercial enterprise, without Smytten’s express prior written
consent.
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You may use information on the Products and Samples purposely made
available through the App for downloading, provided that
You:
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do not remove any proprietary notice language in all copies of such
documents;
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use such information only for your personal, non-commercial
informational purpose and do not copy or post such information
on any networked computer or broadcast it in any media;
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make no modifications to any such information; and
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do not make any additional representations or warranties
relating to such documents.
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You shall be responsible for any such Content that you may transmit
to and via or post through the App. Such Content will become our
property and You grant us the worldwide, perpetual and
transferable rights in such Content. We shall be entitled to,
consistent with our Privacy Policy as adopted in
accordance with applicable law, use the Content or any of its
elements for any type of use forever, including but not limited
to promotional and advertising purposes and in any media
whether now known or hereafter devised, including the creation
of derivative works that may include the Content You provide.
You agree that any Content You post may be used by us,
consistent with our Privacy Policy and rules relating to Your Use of
the Services as mentioned herein, and You are not entitled to any
payment or other compensation for such use.
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Links
The Services may contain links to third-party websites or resources.
You acknowledge and agree that Smytten is not responsible or liable
for: (i) the availability or accuracy of such websites or resources;
or (ii) the content, products, or services on or available from such
websites or resources. Links to such websites or resources do not
imply any endorsement by Smytten of such websites or resources or the
content, products, or services available from such websites or
resources. You acknowledge sole responsibility for and assume all risk
arising from your use of any such websites or resources.
12. User Warranty and
Representation
You guarantee, warrant, and certify that you are the owner of the
content which you submit or otherwise authorise us to use and that the
content does not infringe upon the intellectual property rights or
other rights of third parties. You further warrant that to your
knowledge, no action, suit, proceeding, or investigation has been
instituted or threatened relating to any content, including trademark,
trade name service mark, and copyright formerly or currently used by
you in connection with the Services rendered through the App.
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Exactness Not Guaranteed
We do not warrant that any Product or Sample description or other
Content made available through the App is accurate, complete,
reliable, current, or error-free and assume no liability in this
regard. Smytten hereby disclaims any guarantees of exactness as to the
finish and appearance of the final Product or Sample as ordered by the
User through the App.
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Intellectual Property Rights
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Unless otherwise indicated or anything contained to the contrary or
any proprietary material owned by a third party and so expressly
mentioned, the Services contains content to which Smytten owns all
intellectual property rights, including, without limitation, any and
all rights, title and interest in and to copyright, related rights,
patents, utility models, trademarks, trade names, service marks,
designs, know-how, trade secrets and inventions (whether patentable
or not), goodwill, source code, meta tags, databases, text, content,
graphics, icons, and hyperlinks (“Smytten Content”). You acknowledge
and agree that you shall not use, copy, imitate, reproduce or
distribute any Smytten Content without obtaining authorisation from
Smytten
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Notwithstanding the foregoing, it is expressly clarified that you
will retain ownership and shall solely be responsible for any
Content that you provide or upload when using any Service, including
any text, data, information, images, photographs, music, sound,
video or any other material which you may upload, transmit or store
when making use of our various Services. Instead, you hereby grant
to Smytten a non-exclusive, fully paid and royalty-free,
transferable, sub-licensable, worldwide license to use the Content
that you post on or through the Service, subject to Smytten’s
Privacy Policy.
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Some of the Service is supported by advertising revenue and may
display advertisements and promotions, and you hereby agree that
Smytten may place such advertising and promotions on the Service or
on, about, or in conjunction with your Content. The manner, mode and
extent of such advertising and promotions are subject to change
without specific notice to you. You acknowledge that we may not
always identify paid services, sponsored content, or commercial
communications as such.
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Disclaimers and Limitations of Liability
Please read this section carefully as it limits the liability of
Smytten and its parents, subsidiaries, affiliates, related companies,
officers, directors, employees, agents, representatives, partners, and
licensors (collectively, the “Smytten Entities”). Each of the
subsections below only applies up to the maximum extent permitted
under applicable law. Nothing in this section is intended to limit any
rights you may have which may not be lawfully limited.
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Your access to and use of the Services or any Content are at your
own risk. You understand and agree that the Services are provided to
you on an “AS IS” and “AS AVAILABLE” basis without any
representation or warranties, express or implied except otherwise
specified in writing. Without limiting the foregoing, to the maximum
extent permitted under applicable law, THE SMYTTEN ENTITIES DISCLAIM
ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT.
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Without prejudice to the foregoing, the Smytten Entities make no
warranty or representation and disclaim all responsibility and
liability for: (i) the completeness, accuracy, availability,
timeliness, security or reliability of the Services or any Content;
(ii) any harm to your computer system, loss of data, or other harm
that results from your access to or use of the Services or any
Content; (iii) the deletion of, or the failure to store or to
transmit, any Content and other communications maintained by the
Services; and (iv) whether the Services will meet your requirements
or be available on an uninterrupted, secure, or error-free basis. No
advice or information, whether oral or written, obtained from the
Smytten Entities or through the Services, will create any warranty
or representation not expressly made herein.
Limitation of Liability
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMYTTEN
ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR
REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF
DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i)
YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES;
(ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES,
INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL
CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED
FROM THE SERVICES; OR (iv) UNAUTHORISED ACCESS, USE OR ALTERATION OF
YOUR TRANSMISSIONS OR CONTENT.
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IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SMYTTEN ENTITIES
EXCEED THE AMOUNT YOU PAID SMYTTEN, IF ANY, IN THE PAST SIX MONTHS
FOR THE SERVICES GIVING RISE TO THE CLAIM.
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THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF
LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE SMYTTEN
ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE,
AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE.
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Nothing on the App constitutes, or is meant to constitute, advice
of any kind. All the Products sold through the App are governed by
different state laws and if the Seller or Smytten is unable to
deliver such Products due to implications of different state laws,
the Seller will return or will give credit for the amount (if any)
received in advance by Seller from the sale of such Product that
could not be delivered to you. There shall be no compensation,
whether by way of credit or refund, in respect of Samples as all
Samples are delivered free of cost.
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The Users of the App are expected to update his/her said app on
regular basis, so that he/she can avail the latest services and is
duly aware of any change(s) in the Smytten policy. By
registering your phone number with us, You consent to be
contacted by Us via phone calls and/or SMS and/or Pop-up
notifications, in case of any order or shipment or delivery
related updates. In the event of failure to update the App by the
User, the Users understands and agrees that Smytten shall not be
liable in any manner whatsoever.
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Indemnification
You agree to indemnify, defend and hold harmless Smytten, its
associates and partners from and against any and all losses,
liabilities, claims, damages, costs and expenses (including legal fees
and disbursements in connection therewith and interest chargeable
thereon) asserted against or incurred by Smytten that arise out of,
result from, or may be payable by virtue of, any breach or a law or
any right of any user including including but not limited to
intellectual property rights of a third party or a user or
non-performance of any representation, warranty, covenant or
obligation to be performed by you pursuant to these Terms.
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Seller’s Obligations
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As a Seller registered on the App, you are allowed to list any
Product(s) for sale through the App in accordance with the Policies
which are incorporated by way of reference in these Terms. You must
be legally able to sell the Product(s) you list for sale on our App.
You must ensure that the listed Products do not infringe upon the
intellectual property, trade secret or other proprietary rights or
publicity or privacy rights of third parties. Listings may only
include text descriptions, graphics and pictures that describe your
Product for sale. All listed Products must be listed in an
appropriate category through the App. All listed Products must be
kept in stock with the Seller for successful fulfilment of
sales.
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As a Seller registered on the App, you are allowed to list any
Sample(s) through the App in accordance with the Policies which are
incorporated by way of reference in these Terms. You must be legally
able to list and distribute the Sample(s) you list on our App. You
must ensure that the listed Samples do not infringe upon the
intellectual property, trade secret or other proprietary rights or
publicity or privacy rights of third parties. Listings may only
include text descriptions, graphics and pictures that describe your
Sample. All listed Samples must be listed in the appropriate
category in the Samples section on the App. You are requested to
ship the Sample(s) proposed to be listed by you on the App, to the
designated warehouse address provided by Smytten at least 5 (five)
working days prior to such listing, unless otherwise agreed by
Smytten in writing.
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The listing description of the relevant item must not be misleading
and must describe actual condition of the Product or Sample, as may
be applicable. If the item description does not match the actual
condition of the item, you agree to refund any amounts that you may
have received from the Buyer. You agree not to list a single Product
or Sample in multiple quantities across various categories on the
App. Smytten reserves the right to delete such multiple listings of
the same Product or Sample listed by you in various
categories.
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Payment
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While availing any of the payment method/s available through the
App, we will not be responsible or assume any liability,
whatsoever in respect of any loss or damage arising directly or
indirectly to you due to:
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Lack of authorisation for any transaction(s), or
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Exceeding the preset limit mutually agreed by You and
between ”Bank(s)”, or
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Any payment issues arising out of the transaction, or
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Decline of transaction for any other reason(s).
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All payments made against the purchases on App by You shall
be compulsorily in Indian Rupees acceptable in the Republic of
India. App will not facilitate transaction with respect to any other
form of currency with respect to the purchases made on
App.
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Before shipping/delivering your order to you, Seller may request
you to provide supporting documents (including but not limited
to Govt. issued ID and address proof) to establish the ownership of
the payment instrument used by you for your purchase. This is
done in the interest of providing a safe online shopping environment
to our Users.
Further:
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Transactions, transaction price and all commercial terms such as
delivery, dispatch of Products are as per principal to
principal bipartite contractual obligations between Buyer and Seller
and payment facility is merely used by the Buyer and Seller to
facilitate the completion of the transaction. Use of the payment
facility shall not render Smytten, its associates or partners liable
or responsible for the non-delivery, non-receipt, non-payment,
damage, breach of representations and warranties, non-provision of
after sales or warranty services or fraud as regards the
Products listed on and purchased by Buyers through the App.
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You have specifically authorised Smytten and its service providers
to collect, process, facilitate and remit payments and/or the
transaction price electronically or through cash on delivery to
and from other Users in respect of transactions through the
relevant payment system (“Payment Facility”). Your relationship with
Smytten is on a principal to principal basis and by accepting
these Terms you agree that Smytten is an independent contractor
for all purposes, and does not have control of or liability for
the Products that are listed on App that are paid for by using
the Payment Facility. Smytten does not guarantee the identity
of any User nor does it ensure that a Buyer or a Seller will
complete a transaction.
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You understand, accept and agree that the Payment Facility provided
by Smytten is neither a banking nor financial service but is
merely a facilitator providing an electronic, automated online
electronic payment, receiving payment through cash on delivery,
collection and remittance facility for the transactions through
the App using the existing authorised banking infrastructure payment
gateway networks. Further, by providing the Payment
Facility, Smytten, its associates and partners are neither
acting as trustees nor acting in a fiduciary capacity with
respect to the transaction or the transaction price.
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Payment Facility for Buyers
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You, as a Buyer, understand that upon initiating a transaction You
are entering into a legally binding and enforceable contract
with the Seller to purchase the Product(s) from the Seller
using the Payment Facility, and You shall pay the transaction
price through Your issuing bank to the Seller using the Payment
Facility.
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You, as a Buyer, may agree with the Seller through
electronic communication and electronic records and using the
automated features as may be provided by the Payment Facility
on any extension / increase in the dispatch and/or delivery
time and the transaction shall stand amended to such extent.
Any such extension / increase of dispatch / delivery time
or subsequent novation/variation of the transaction should be
in compliance with the Payment Facility Rules and
Policies.
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You, as a Buyer, shall electronically notify the payment system
operation using the appropriate App features immediately upon
delivery or non-delivery of any Product within the time period as
provided in the Policies. Non-notification by You of delivery
or non-delivery within the time period specified in the
Policies shall be construed as a deemed delivery in respect of
that transaction. In case of cash on delivery transactions, the
Buyer is not required to confirm the receipt of Products.
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You, as a Buyer, shall be entitled to claim a refund of the
transaction price (as Your sole and exclusive remedy) in case
You do not receive the delivery within the time period agreed
in the transaction or within the time period as provided in the
Policies, whichever is earlier. In case you do not raise a
refund claim using the App features within the stipulated time, then
this would make You ineligible for a refund.
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You, as a Buyer, understand that the Payment Facility may not
be available in full or in part for certain category of
Products and/or transactions as mentioned in the Policies and hence,
You may not be entitled to a refund in respect of the
transactions for those Product.
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For electronic transactions, refund, if any, shall be made
at the same issuing bank from where transaction price was
received and such refund shall be made through the Payment
Facility using NEFT / RTGS or any other online
banking/electronic funds transfer system approved by Reserve
Bank India (RBI).
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For cash on delivery transactions, refunds, if any, will be made
via demand draft in favour of the Buyer (as per the
registration details provided by the Buyer).[2]
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Refund shall be made in Indian Rupees only and shall be equivalent
to the transaction price. On cancellation of orders above
₹5,000, refund will be settled post deduction of transaction
fee.
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Refund shall be conditional and shall be with recourse available to
Smytten in case of any misuse by Buyer.
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Refund shall be subject to Buyer complying with applicable
Policies.
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Smytten reserves the right to impose limits on the number of
transactions or the transaction price which Smytten may receive
from an individual’s valid credit/debit/cash card/valid bank
account/and such other infrastructure or any other financial
instrument directly or indirectly through payment aggregator or
through any such facility authorised by Reserve Bank of India to
provide enabling support facility for collection and remittance
of payment or by an individual Buyer during any time period,
and reserves the right to refuse to process
transactions exceeding such limit
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Smytten reserves the right to refuse to process transactions by
Buyers with a prior history of questionable charges including
without limitation breach of any agreements by Buyer with Smytten or
breach/violation of any law or any charges imposed by the
respective issuing bank or breach of any policy.
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Smytten may do such checks as it deems fit before approving the
receipt of/Buyer’s commitment to pay (for cash on delivery
transactions) the transaction price from the Buyer for security or
other reasons at the discretion of Smytten. As a result of such
check, if Smytten is not satisfied with the creditability of the
Buyer or the genuineness of the transaction/transaction price,
it will have the right to reject the receipt of / Buyer’s
commitment to pay the transaction price.
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Smytten may delay notifying the payment confirmation i.e. informing
the Seller, if Smytten is not satisfied with the creditability of
the Buyer or the genuineness of the transaction/transaction
price or for Buyers conducting high transaction volumes in order to
ensure safety and security in relation to the transaction. In
addition, Smytten may hold the transaction price and Smytten
may not inform the Seller to initiate dispatch of the Product
or may remit the transaction price to law enforcement officials
(instead of refunding the same to the Buyer) at the request of
law enforcement officials in the event the Buyer is engaged in
any form of illegal activity.
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The Buyer and Seller acknowledge that Smytten will not be liable
for any damages, interests or claims, etc. resulting from not
processing a transaction/transaction price or any delay in
processing a transaction/transaction price which is beyond
control of Smytten.
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Compliance with Laws:
The Buyer and Seller shall comply with all applicable laws (including
without limitation, the Foreign Exchange Management Act, 1999 and
the rules and notifications made and issued there under and the
Exchange Control Manual as may be issued by Reserve Bank of India
from time to time, the Customs Act, the Information and Technology
Act, 2000 as amended by the Information Technology (Amendment) Act
2008, the Prevention of Money Laundering Act, 2002 and the rules made
thereunder, the Foreign Contribution Regulation Act, 1976 and the
rules made there under, the Income Tax Act, 1961 and the rules
made there under, the Export Import Policy of government of
India) applicable to them respectively for using Payment Facility
and the App.
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Buyer’s arrangement with Issuing Bank:
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All valid credit /debit/cash card and other payment instruments
are processed using a credit card payment gateway or
appropriate payment system infrastructure and the same will also be
governed by the terms and conditions agreed to between the
Buyer and the respective issuing bank and the payment instrument
issuing company.
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All online bank transfers from valid bank accounts are processed
using the payment gateway provided by the respective issuing
bank which supports the Payment Facility to provide these
services to the Users. All such online bank transfers on the
Payment Facility are also governed by the terms and conditions
agreed to between Buyer and the respective Issuing Bank.
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Jurisdictional Issues/Sale in India Only
Unless otherwise specified, the material through the Services is
presented solely for the purpose of sale/ ordering in India.
Smytten makes no representation that materials made available through
the Services are appropriate or available for use in jurisdictions
other than India. Those who choose to access this site from
locations other than in India, do so on their own initiative and
Smytten is not responsible for the supply of Products or
Samples/refund for the Products/ replacement of the Samples ordered
from other locations/countries other than India, or compliance with
local laws, if and to the extent local laws are applicable.
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Trademark, Copyright and Restriction
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The Services are controlled and operated by Smytten, its partners
and associates and Products and Samples are offered for sale or
ordering by the respective Sellers. All material on this site,
including images, illustrations, audio clips, and video clips,
are protected by copyrights, trademarks, and other intellectual
property rights.
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All content included on the App, such as text, graphics, logos,
button icons, images, audio clips, digital downloads, data
compilations, and software, is the property of Smytten or its
Sellers, unless owned by any third party and protected by applicable
copyright laws. All other such content not owned by Smytten that
appears on the App is the property of the respective owners. All
software used on this App is the property of Smytten and is
protected by applicable copyright laws. Any unauthorised copying or
reproduction of the above identified material is strictly prohibited
by law.
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‘Smytten’, the Smytten logo and other marks indicated on the App
are trademarks of Smytten. Other Smytten graphics, logos, page
headers, button icons, scripts, and service names are trademarks or
trade dresses of Smytten. Smytten’s trademarks and trade dresses may
not be used in connection with any product or service that is not
Smytten’s, in any manner that is likely to cause confusion among
users, or in any manner that disparages or discredits Smytten. All
other trademarks not owned by Smytten that appear on this site are
the property of their respective owners.
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Material on the App is solely for Your personal, non-commercial
use. You must not copy, reproduce, republish, upload, post,
transmit or distribute such material in any way, including by
email or other electronic means and whether directly or
indirectly and You must not assist any other person to do so.
Without the prior written consent of the owner, modification
of the materials, use of the materials on any other website or
networked computer environment or use of the materials for any
purpose other than personal, non-commercial use is a violation of
the copyrights, trademarks and other proprietary rights, is
strictly prohibited. Any use for which You receive any
remuneration, whether in money or otherwise, is a commercial
use for the purposes of this clause.
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Trademark complaint
Smytten respects the intellectual property of others. In case you
feel that your trademark has been infringed, you can write to Smytten
at care@smytten.com.
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Delivery
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Smytten will make a maximum of three attempts to
deliver a FULL SIZED product ordered by you and a maximum
of two attempts to deliver a SAMPLE ordered. In
case the Buyer is not reachable or does not accept delivery of the
Product or the Sample in these attempts, Smytten reserves the right
to cancel the order(s) at its discretion. An estimated delivery time
is displayed on the order summary page. On placing your order, you
will receive an email containing a summary of the order and also the
estimated delivery time to your location.
Sometimes, delivery may take longer due to:
-
Bad weather
-
Flight delays
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Political disruptions, or
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Other unforeseen circumstances
In such cases, we will proactively reach out to you. Please check
your emails and SMS regularly for such updates. Also, we will not be
able to compensate for any mental agony caused due to delay in
delivery. The Buyer can cancel the order at any moment of time even if
the delivery time exceeds the expected delivery time. If it is a
prepaid order, the Buyer will be refunded back the relevant
transaction price in the account as soon as the order is successfully
cancelled.
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The Buyer agrees that the title to a Product or Sample is
transferred to the Buyer at the time of placing the order and
dispatch confirmation thereof irrespective of shipping of the
Product or Sample and cash on delivery, which are to be done in due
course being separate chargeable facilities”
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Governing Law
These Terms shall be governed by and constructed in accordance with
the laws of India. Any disputes arising in relation hereto shall be
subject to the exclusive jurisdiction of the courts at [New
Delhi].
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Interpretation of Number and Genders and Capitalised Words
The Terms herein shall apply equally to both the singular and plural
form of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine and feminine. The
words “include”, “includes” and “including” shall be deemed to be
followed by the phrase “without limitation”. Unless the context
otherwise requires, the terms “herein”, “hereof”, “hereto”,
“hereunder” and words of similar import refer to the Terms as a whole.
The capitalised words used anywhere in these Terms shall have the
meaning as is readily inferable from the context or as they are
commonly used and understood in their normal commercial sense.
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Headings
The headings and subheadings herein are included for convenience and
identification only and are not intended to describe, interpret,
define or limit the scope, extent or intent of the Terms or the right
to use the App by you contained herein or any other section or pages
of the App or any Linked Sites in any manner whatsoever.
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Severability
If any provision of the Terms is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part of such provision and the
remaining part of such provision and all other provisions of these
Terms shall continue to be in full force and effect.
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Report Abuse
As per these Terms, users are solely responsible for every material
or content uploaded on to the App. Smytten does not review the
contents in any way before they appear through the App. Smytten does
not verify, endorse or otherwise vouch for the contents of any user or
any content generally posted or uploaded on to the App. Users can be
held legally liable for their contents and may be held legally
accountable if their contents or material include, for example,
defamatory comments or material protected by copyright, trademark,
etc. If you come across any abuse or violation of these Terms, please
report to Smytten.
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Unauthorized Charges on your card
If you see charges on your credit/debit card for purchases made
through the App, but you never created an account or signed up, please
check with your family members or business colleagues authorised to
make purchases on your behalf, to confirm that they haven't placed the
order. If you are still unable to recognise2 the charge, please report
the unauthorised purchase to Smytten within [•] days of the
transaction to enable Smytten to begin an investigation.
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Prohibited Uses
You agree not to use the App in any way that
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is unlawful, illegal or unauthorised;
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is defamatory of any other person;
-
is obscene or offensive;
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promotes discrimination based on race, sex, religion, nationality,
disability, sexual orientation or age;
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infringes any copyright, database right or trade mark of any other
person;
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is likely to harass, upset, embarrass, alarm or annoy any other
person;
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is likely to disrupt our service in any way; or
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advocates, promotes or assists any unlawful act such as (by way of
example only) copyright infringement or computer misuse.
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Mispricing
Despite our best efforts, a small number of Products in our catalogue
are mispriced. However, we verify prices as part of our shipping
procedures. If a Product’s correct price is lower than our stated
price, we charge the lower amount and send you the Product along with
a refund of the excess amount as per these Terms. If a Product's
correct price is higher than our stated price, we will cancel your
order and notify you of that cancellation.
POLICIES
PROFANITY POLICY
Smytten prohibits the use of language that is obscene, racist,
hateful or otherwise disparaging in nature in any manner
whatsoever.
• This
policy is applicable text within listings, on Seller pages and all
other areas of the site that another User may view. If the profane
words are part of a title for the item being sold, we allow Sellers to
'blur' out the bulk of the offending word with asterisks.
• If a
feedback comment, or any communication made between Users through the
App; or email communication between Users in relation to transactions
conducted on the App contain profane language, please submit a request
for action/removal.
•
Disciplinary action may result in either an indefinite suspension of a
User's account, a temporary suspension, or a formal warning.
• Smytten
will consider the circumstances of an alleged policy violation and the
User's trading records before taking action.
•
Violations of this policy may result in a range of actions, including,
limits placed on account privileges, loss of special status and
account suspension.
DISPUTE RESOLUTION POLICY
Overview
Generally, transactions are conducted smoothly on the App. However
there may be some cases where both the Buyers and Sellers may face
issues. At Smytten, we have a Dispute Resolution process in order to
resolve disputes between Buyers and Sellers.
What is a 'dispute'?
A 'Dispute' can be defined as a disagreement between a Buyer and a
Seller in connection with a transaction on the App.
How does a 'dispute' occur in the Marketplace?
Disputes are filed as a result of a disagreement between the Buyer
and the Seller. Disputes arise out of an issue that is raised by
either party not being completely satisfied with the resolution of
their complaint/issue.
It is important that before a Buyer/Seller raises a dispute, they
should attempt to resolve the issue mutually. Please note that
whenever a Buyer raises a dispute, the Seller's payment for that order
is put on hold immediately until the issue is resolved.
How is a 'dispute' created?
Whenever there is a disagreement, the Buyer can write to [•], while
the Seller can write to [•], in order to raise a dispute. Disputes can
be raised at any particular stage of the transaction.
What are the various types of 'disputes'?
Following are the indicative examples of potential disputes:
-
Wrong item received
-
Seller description/specification is wrong
-
Damaged item
-
Part/Accessory missing
In case the Seller rejects the return request of the Buyer, and Buyer
raises a dispute, then Smytten will try to mediate and resolve the
dispute between both the parties. If the dispute is resolved in favour
of the Buyer, a refund is provided once the product is returned to the
Seller. If the dispute is settled in favour of the Seller, Buyer is
not entitled to any refund.
Disclaimer
It is the User’s responsibility to log-in earlier if they want to
avail better Products or Samples or styles because placement of orders
is “first come, first served”. The merchandise is not restocked once
sold out. No information regarding the presence of any Product or
Sample in our stock will be guaranteed and we will alert you only when
an item is sold out.
We, as an intermediary digital marketplace, shall be under no
liability whatsoever in respect of any loss or damage arising directly
or indirectly out of the decline of authorisation for any transaction,
or on account of the cardholder having exceeded the preset limit
mutually agreed by us with our acquiring bank from time to time.