Part 1:  Demand Side (Buyer, Advertiser, Marketer) Terms

TheSmartWare (867, Block 14, Lodhi Colony, New Delhi - 110003, India, legal@thesmartware.com) offers an Marketing technology Platform {the "Platform"} that connects Publishers or Partners or Vendors and Marketers or Resellers via  our online  platform  and therefore is not responsible for the content, functionality or performance of any Ad or Publisher Property. TheSmartWare offers a web-based technology Service that collects information  about  how Users use  Publisher  Properties within  the Network  and enables Marketers and Resellers to serve Ads to those Publisher Properties based on specific User Characteristics via the Service

The terms and conditions between you and TheSmartWare (the “Agreement”). You are requested to read the Agreement with due care. To confirm your understanding and acceptance of the Agreement, click “Agree.” Agreeing to these Use Terms is a condition of any of our services. You signify your agreement to these terms and are legally bound by them from the date on which you signify your acceptance. These terms shall continue to bind you for so long as you make use of our services.

1. SERVICES AND RULES

We grant you a limited and non-exclusive right to use the our services. Your use of the Services must be legitimate and lawful in nature. Any other use of the Services is a material breach of this Agreement. TheSmartWare may monitor your use of the Services and Content to ensure that you are complying with the requirements or not.

2. USER REPRESENTATIONS

By using our services, you represent and warrant that:

  1. all registration information you submit will be true, accurate, current, and complete;
  2. you will maintain the accuracy of such information and promptly update such registration information as necessary;
  3. you have the legal capacity and you agree to comply with these Terms of Use;
  4. you are not under the age of 18;
  5. not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Site;
  6. you will not use the Application for any illegal or unauthorized purpose; and

Information provided by you turns out to be untrue, inaccurate, not current, or incomplete, illegal.  we have the right to suspend or terminate your account and refuse any and all current or future use of the Services or our site.

3. RESPONSIBILITY OF VISITORS AND USERS

We have not reviewed, and cannot review, all of the content posted to our Services by users or anyone else (“Content”) and are not responsible for any use or effects of such Content. We do not endorse any Content or represent that Content is accurate, useful, or non-harmful, legal. Content could be illegal, offensive; include technical inaccuracies, or violate rights of third parties.

If you post Content on our Services, you are entirely responsible for the Content, and any harm resulting from, that Content or your conduct. We disclaim any responsibility for any harm resulting from the Content. If you access or use any Content, you are responsible for taking precautions as necessary to protect yourself and your computer systems.

Any Content offered for sale through any of our Services are the seller’s sole responsibility, and you agree that you will look solely to the seller for any damages that result from your purchase or use of Content. We are not a party to, and will have no responsibility or liability for, any communications, transactions, interactions, or disputes between you and the provider of any Content. Please note that additional third party terms and conditions may apply to the downloading, copying, purchase, or use of Content.

We also have not reviewed, and cannot review, all of the material, made available through the websites and web pages linked from our website. We do not have any control over those websites and are not responsible for their contents or their use. The existence of a link to or from one of our Services does not represent or imply that we endorse such website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from harmful or destructive content.

4. USER REGISTRATION & ACCOUNT

Use of our services requires an account, you agree to provide us with complete and accurate information when you register for an account and keep the information current. This is important because we want you know about and make informed choices in response to legal inquiries or complaints.

You will be solely responsible and liable for any activity that occurs under your account. You are responsible for keeping your account information up-to-date and for keeping your password secure.

You are responsible for maintaining the security of your account and any Service-related website, store, or other content, and you are fully responsible for all activities that occur under your account and any other actions taken in connection with our Services. You shall not share or misuse your access credentials. You must immediately notify us of any unauthorized uses of your account, store, or website, or of any other breach of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

5. YOUR CONDUCT

You must not use the website in any way that causes, or is likely to cause, the website or access to it to be interrupted, damaged or impaired in any way. You understand that you are responsible for all electronic communications and content sent from your computer to us and you must use the website for lawful purposes only. You must not use the website for any of the following:

  1. The user should not involve in any activity prohibited by the electoral law, more particularly actions which tend to interfere in the election process.
  2. The user shall not be involved in promoting any fake content or fake news and profile for illegitimate gain prohibited by any law.
  3. The user shall not personify any person or promote any profile without express permission from the person to whom such profile belongs for wrongful gains or cause wrongful damages not permissible under the law.
  4. The user shall not be affiliated with any activity or organization dealing in offences relating to terror financing as well as activities associated with crime and terrorism.
  5. The user shall not be involved in any activity which causes communal disharmony among the society or preaches violence or religious intolerance or any other activity prohibited under the applicable laws.
  6. The user shall not be involved in any activity prohibited under the Information and Technology Act 2000, Indian Penal Code and any other law for the time being in force including crimes related to hacking, sexual, pornographic and offensive content, intellectual property etc.
  7. The user shall not be involved in any defamatory or disparaging activity prohibited under the law against any person or organization.
  8. The user shall not be involved in any activity leading to infringement of privacy of any other person.
  9. The user shall not involve any activity which violates applicable law by disclosing confidential information including laws relating to the security market and confidentiality related laws concerning the national security.
  10. The user shall abide by applicable laws and directions issued by the competent authority from time to time.

6. THIRD-PARTY WEBSITES

On accessing our website, you may witness links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). We acknowledge that the aforesaid Third-Party Websites and Third-Party Content are not examined, observed, or checked for exactness or completeness by us, and we are not responsible for any Third-Party Websites opened through the website or any Third-Party Content posted on, available through, or installed from the Application, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us.

On leaving our website and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern.

It is suggested to review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from our website for your own perusal.

Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.

You acknowledge that we do not ratify the products or services offered on Third-Party Websites and we shall not be liable for any harm caused by your purchase of such products or services. Moreover, we shall be harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.

7. INFORMATION PROVIDED TO OTHERS

You are responsible for any information you provide to others using the Service. Any information you provide to a third party will be subject to the privacy notice or any similar terms that the third party provides to you.

8. AUTHORISATION

Services made available through the website are licensed, not sold, to you. Your license to each service is subject to your prior acceptance of either this Licensed service End User License Agreement (“Standard EULA”). Your license to any services under this Standard EULA or Custom EULA is granted by us. Any service that is subject to this Standard EULA is referred to herein as the “Licensed service.” The Service Provider or TheSmartWare as applicable (“Licensor”) reserves all rights in and to the Licensed services not expressly granted to you under this Standard EULA.

  1. Scope of License: Licensor grants to you a non-transferable license to avail our Services on any profile that you handle or control and as permitted by the Usage Rules. The terms of this Standard EULA will govern any content, materials, or services accessible from or purchased within the TheSmartWare site as well as. Except as provided in the Usage Rules, you may not distribute or make the services available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the services.
  2. Consent to Use of Data: You agree that Licensor i.e. we may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of improvements, service support. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its services or to provide services or technologies to you.
  3. Termination: This Standard EULA is effective until terminated by you or Licensor. Your rights under this Standard EULA will terminate automatically if you fail to comply with any of its terms.
  4. External Services: The Licensed services may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any our site or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Licensor i.e. by us . You will not use the External Services in any manner that is inconsistent with the terms of this Standard EULA or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use.

NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES OR EXTERNAL SITE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Licensor’s total liability to you for all damages.

You may not use or otherwise export or re-export the services except as authorized by law and the laws of the jurisdiction in which the Licensed services was obtained. You also agree that you will not use these services for any purposes prohibited by law.

Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and TheSmartWare and shall be governed by the laws of India, excluding its conflicts of law provisions. You and TheSmartWare agree to submit to the personal and exclusive jurisdiction of the courts in Delhi India, to resolve any dispute or claim arising from this Agreement. If

  1. you are not an Indian citizen;
  2. you do not reside in the India;
  3. you are not accessing the Service from the India; you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions.

9. PRIVACY

Your use of our Services is subject to TheSmartWare Privacy Policy, which is available at https://thesmartware.com/page/terms.php. We care about data privacy and security. Please review our Privacy Policy by using the services, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use.

10. OUR CONTRACT

Your order / campaign is an offer to us to buy the service(s) in your order. When you place an order to purchase a service from us, you will receive confirmation of your order and containing the details of your order. The Order Confirmation is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the service(s) ordered. We only accept your offer, and conclude the contract of sale for a service(s)

Your contract is with us and you confirm that the service(s) ordered by you are purchased for your internal / personal purpose and not for re-sale.

11. PAYMENTS

You can avail our Services for a charge, which is referred to as a “Transaction.” All Transactions are final. Price may change at any time. Every user must have an account before availing our services users will be required to make the necessary payments and recharge the account balance.

We list information for services sold  on the website. We cannot be more specific about information. We process your order, you will be informed by e-mail or any other communication method if any service is not available. All prices are exclusive of VAT/CST, service tax, Goods and Services Tax ("GST"), duties and cesses as applicable - unless stated otherwise.

All the accepted payments are non-refundable in any case. If technical problems prevent or unreasonably delay delivery of services, your exclusive and sole remedy is either refund of the price paid, as determined by TheSmartWare in accordance with our refund policy . From time to time, TheSmartWare may refuse a refund request if we find evidence of fraud, refund abuse, or other manipulative behaviour that entitles.

Any user on availing our service need to consider the following:

  1. On making payment the user is not allowed to cancel the order and will no longer enjoy the right to file a dispute or charge back.
  2. All the refund shall be made to the TheSmartWare user account as credits which can be utilised from the orders/campaign section on the website.
  3. Further no private profile or mismatch account shall be entitled to any refund.

You shall be responsible for payment of all fees/costs/charges associated with the purchase of products from us and you agree to bear any and all applicable taxes including but not limited to VAT/CST, service tax, GST, duties and cesses etc.

12. DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION

TheSmartWare DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME The TheSmartWare MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME, CANCEL THE SERVICES AT ANY TIME, OR OTHERWISE LIMIT OR DISABLE YOUR ACCESS TO THE SERVICES WITHOUT NOTICE TO YOU.

YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND ALL CONTENT DELIVERED TO YOU THROUGH THE SERVICES ARE (EXCEPT AS EXPRESSLY STATED BY The TheSmartWare) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

The TheSmartWare SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND YOU HEREBY RELEASE The TheSmartWare FROM ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

The TheSmartWare DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, BOT, FAKE PROFILES OR SIMILAR OR OTHER SECURITY INTRUSION, AND YOU HEREBY RELEASE The TheSmartWare FROM ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY CONTENT ACQUIRED OR RENTED THROUGH THE SERVICES.

The TheSmartWare IS NOT RESPONSIBLE FOR DATA CHARGES YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE SERVICES.

13. WAIVER AND INDEMNITY

BY USING THE SERVICES, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD The TheSmartWare, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICES, OR ANY ACTION TAKEN BY the TheSmartWare AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. YOU AGREE THAT YOU SHALL NOT SUE OR RECOVER ANY DAMAGES FROM The  TheSmartWare, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICES, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF TheSmartWare'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT

 

14. TERM AND TERMINATION

These Terms of Use shall remain in full force and effect while you use the Application. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

Once your account is terminated for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress

15. FORCE MAJEURE

We will not be held responsible for any failure on providing services to users on account of an unforeseen circumstances including technical failure, termination of contract with service provider/partner, cyber-attack, change in applicable law, natural calamity, pandemic arising out of any virus or flu or any other similar situation which are out of human control and are unavoidable.

 

16. MISCELLANEOUS

These Terms of Use and any policies or operating rules posted by us on the Application constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

  1. All the complaints should be directed to the Nodal Officer (Law officer of the company)[name contact and designation of the nodal officer] appointed by us. The nodal officer will be responsible to address the complaint as per the established procedure in accordance with law. The Nodal Officer will acknowledge the complaint within 48 hours of the complaint and will resolve the complaint within 30 days from the date of the receipt of the complaint.
  2. We do not adopt any unfair trade practice on our platform or otherwise.
  3. We do not impose any cancellation charges.
  4. All the acceptance are recorded by our website in explicit consent in affirmative manner for purchases of the services.
  5. All payments are effected are made in accordance with the guidelines prescribed by the government from time to time.
  6. We do not indulge in manipulative and unjustified pricing.
  7. We do not use discriminatory pricing or arbitrary classification among our users.
  8. We abide by all the rules and regulations as provided in the Information and Technology Act 2000.
  9. All the information is disclosed in an accurate manner including the name and contact details of the service provider.
  10. We abide by the regulations made under the consumer law.

17. GOVERNING LAW

Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and TheSmartWare, and all Transactions on the Services shall be governed by the laws of the India, excluding its conflicts of law provisions. You and TheSmartWare agree to submit to the personal and exclusive jurisdiction of the courts located within the county. If (a) you are not a Indian citizen; (b) you do not reside in the India; (c) you are not accessing the Service from the India, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the Indian law.

18. OTHER PROVISIONS

This Agreement constitutes the entire agreement between you and The TheSmartWare and governs your use of the Services, superseding any prior agreements with respect to the same subject matter between you and The TheSmartWare. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, third-party software, or additional services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. TheSmartWare’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. The TheSmartWare will not be responsible for failures to fulfil any obligations due to causes beyond its control.

You agree to comply with all local, state and national laws, ordinances, and regulations that apply to your use of the Services. Your use of the Services may also be subject to other laws. Risk of loss for all electronically delivered Transactions pass to the acquirer upon electronic transmission to the recipient. No TheSmartWare employee or agent has the authority to vary this Agreement. TheSmartWare may notify you with respect to the Services by sending an email message to your email address or a letter via postal mail to your mailing address, or by a posting on the Services.

You hereby grant TheSmartWare the right to take steps TheSmartWare believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that TheSmartWare has the right, without liability to you, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third party, as TheSmartWare believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement.