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:

• “Buyer”, shall mean a User who has agreed to become a buyer by using the Services to place an order for Samples or Products;

• “Products” shall mean products listed on the website [by Sellers] as a part of the Services, for purchase by Buyers;

• “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;

• “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;

• “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

• “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:

• All commercial/contractual terms are offered by and agreed to between Buyers and Sellers alone.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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. 
• 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.
• You shall independently agree upon the manner and terms and conditions of delivery, payment, insurance etc. with the Seller(s) that You transact with.
• 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.
• 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:

• belongs to another person and to which You does not have any right to;

• 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;

• is misleading in any way;

• 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;

• harasses or advocates harassment of another person;

• involves the transmission of “junk mail”, “chain letters”, or unsolicited mass mailing or “spamming”;

• promotes illegal activities or conduct that is abusive, threatening, obscene, blasphemous, politically or religiously charged, defamatory or libellous;

• 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);

• 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;

• contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);

• provides material that exploits people in a sexual, violent or otherwise inappropriate manner or solicits personal information from anyone; 

• provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

• contains video, photographs, or images of another person (with a minor or an adult).

• 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;

• 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;

• solicits gambling or engages in any gambling activity which we, in Our sole discretion, believes is or could be construed as being illegal;

• interferes with another User's use and enjoyment of the Services;

• 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;

• harm minors in any way;

• 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;

• violates any law for the time being in force;

• deceives or misleads the addressee/ users about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

• impersonate another person;

• 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;

• 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;

• shall not be false, inaccurate or misleading;

• 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.

• 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;

• 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.

• 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.

• 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.

• 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.

• 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.

• 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

• 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.

• 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.

• 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

• 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.

• 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.

• 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.

• 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 

• 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

1. 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.

2. 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.

10. Contents Posted on the App

• 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.
• 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.
• You may use information on the Products and Samples purposely made available through the App for downloading, provided that You:

• do not remove any proprietary notice language in all copies of such documents;

• 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;

• make no modifications to any such information; and

• do not make any additional representations or warranties relating to such documents.

• 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.

11. 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.

13. 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.

14. Intellectual Property Rights

• 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

• 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.

• 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.

15. 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.

• 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.

• 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

• 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.

• 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.

• 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.

• 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.

• 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.

16. 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.

17. Seller’s Obligations

• 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.

• 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.

• 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.

18. Payment

• 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:

• Lack of authorisation for any transaction(s), or
• Exceeding the preset limit mutually agreed by You and between ”Bank(s)”, or
• Any payment issues arising out of the transaction, or
• Decline of transaction for any other reason(s).

• 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.

• 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:

• 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.

• 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.

• 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.

19. Payment Facility for Buyers

• 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.

• 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.

• 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.

• 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.

• 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.

• 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).

• 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]

• 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.

• Refund shall be conditional and shall be with recourse available to Smytten in case of any misuse by Buyer.

• Refund shall be subject to Buyer complying with applicable Policies.

• 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

• 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.

• 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.

• 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.

• 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.

20. 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.

21. Buyer’s arrangement with Issuing Bank:

• 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.

• 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.

22. 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.

23. Trademark, Copyright and Restriction

• 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.

• 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.

• ‘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.

• 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.

24. 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.

26. Delivery

• 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
• Political disruptions, or
• 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.

• 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”

27. 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].

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. Prohibited Uses

You agree not to use the App in any way that

• is unlawful, illegal or unauthorised;
• is defamatory of any other person;
• is obscene or offensive;
• promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
• infringes any copyright, database right or trade mark of any other person;
• is likely to harass, upset, embarrass, alarm or annoy any other person;
• is likely to disrupt our service in any way; or
• advocates, promotes or assists any unlawful act such as (by way of example only) copyright infringement or computer misuse.

34. 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.