Smacircle Terms of Sales
DATE OF LAST UPDATE: 19 June 2020
These Terms of Sale (“Terms”) apply to all orders placed by you through
Smacircle’s website. By placing any order through the Smacircle website, you
are agreeing to be bound by these Terms. You represent and warrant that you
have the legal capacity to agree to these Terms. If you are under the age of
thirteen, or any higher minimum age in your jurisdiction, you represent and
warrant that you have obtained parental or guardian consent to enter into
these Terms. These Terms are between you and Smacircle LMT Ltd., and, if
applicable, the reseller appointed by Smacircle LMT Ltd. In these Terms,
“Smacircle” and “we” mean Smacircle LMT Ltd. and/or its affiliates and, if
applicable, any such reseller.
RETURN POLICY
If you are unsatisfied with your purchase of a Smacircle-branded device and/or
accessory from the Smacircle website for any reason, you are entitled to a full
refund if you meet the conditions set forth in Smacircle Return Policy.
If your return fails to meet any of the above conditions, we may, in our
discretion, refuse to accept it or charge you a restocking fee of up to 30% of the
original price.
LIMITED WARRANTY
Your use of Smacircle-branded devices and accessories is subject to Smacircle’s applicable Limited Product Warranty.
NOT FOR RESALE
The Smacircle website sells and delivers products to end-user customers only, and we reserve the right to refuse or cancel your order if we suspect you are purchasing products for resale.
PRICING
Prices are stated in the U.S. dollar currency, and may not include delivery and handling charges or applicable taxes, which, if applicable, will be communicated and shown to you before you place your order. Smacircle reserves the right to change the prices for any products or services in the Smacircle Website at any time without notice.
ORDERING, SHIPPING AND DELIVERY
Smacircle may refuse or cancel any order or limit any order quantity in our sole
discretion, even after receiving your order. Smacircle may also require
additional qualifying information prior to accepting or processing your order.
While it is our practice to confirm orders by e-mail, your receipt of an e-mail
confirmation does not constitute our acceptance of your order or our
confirmation of an offer to sell a product or service.
If you wish to make a transaction through the Smacircle Website, you may be
asked to supply certain relevant information, such as your payment and delivery
information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE
ANY PAYMENT METHOD THAT YOU CHOOSE TO USE TO COMPLETE ANY SUCH
TRANSACTION. By submitting such information, you grant to us the right to
provide such information to third parties for purposes of facilitating transactions.
Verification of information may be required prior to the acknowledgment or
completion of any transaction.
The actual delivery of your order can be affected by many events beyond our
control, and you agree we are not liable for late deliveries. Title to the products
will pass to you upon delivery of the products to the carrier; however, risk of loss
of, or damage to, the products will pass to you upon delivery of the products to
you.
In certain regions, although we are the operator of the Smacircle website, the
products and services may be sold to you by our appointed reseller, as the seller
of record, pursuant to contractual arrangements between us and the reseller.
As described above, this means you have a contract with that appointed
reseller for the supply of those products and services. In such cases, the point of
purchase or your order confirmation will include the appropriate contact
information for any issues relating to your order. Smacircle LMT Ltd. and its
affiliates express third-party beneficiaries of these Terms in cases where these
Terms are between you and the appointed reseller.
PRODUCT AND SERVICE AVAILABILITY
Smacircle reserves the right to add or remove products and services from the
Smacircle website at any time for any reason. Smacircle also reserves the right
to change quantities available for purchase at any time, even after you place
an order.
Smacircle makes no representations as to the completeness, accuracy,
reliability, validity or timeliness of any listings, descriptions or images (including,
without limitation, any features and specifications such as weights and sizes) for
any products or services available through the Smacircle Website. Such
information and the availability of any product or service (including, without
limitation, the validity of any coupon or discount) are subject to change at any
time without notice. Smacircle makes reasonable efforts to accurately display
the attributes of products, including the applicable colours, however the actual
colours you see will depend on your computer system, and we cannot
guarantee that your computer will accurately display such colours. It is your
responsibility to understand and comply with all applicable local, state, federal
and foreign laws (including minimum age requirements) regarding the
purchase, possession and use of any product or service.
COMPATIBILITY
You are solely responsible for determining the compatibility of the products and services with any required equipment (e.g. ensuring that you are using a compatible mobile device). You agree that lack of compatibility does not constitute a defect giving rise to a claim under our Limited Product Warranty.
SOFTWARE LICENSE
To the extent the products ordered by you contain, consist of, or make available Smacircle software in any form, such software is licensed to you and not sold.
LIMITATIONS ON LIABILITY
SMACIRCLE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF
OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
SMACIRCLE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM
THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICE FOR
INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICE AT ANY TIME, WITHOUT
NOTICE TO YOU.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT
YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO
YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED
‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT ANY REPRESENTATION,
WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE,
AND NON-INFRINGEMENT.
NEITHER SMACIRCLE, ITS SUPPLIERS, DISTRIBUTORS, OR LICENSORS, NOR ANY
OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING SMACIRCLE
PRODUCTS AND SERVICES WILL BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY
DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST
REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR
DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICE
OR ANY PRODUCTS PROCURED USING THE SERVICE, OR FOR ANY OTHER CLAIM
RELATED IN ANY WAY TO YOUR USE OF THE SERVICE OR ANY PRODUCT,
INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT,
OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF
THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR
OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR
POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO
THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT WILL THE AGGREGATE, TOTAL LIABILITY OF SMACIRCLE, OR ITS
SUPPLIER, DISTRIBUTOR, RESELLER, OR LICENSOR, OR OTHER PARTY INVOLVED IN
CREATING, PRODUCING, OR DELIVERING SMACIRCLE PRODUCTS AND SERVICES,
ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR
INABILITY TO USE THE AMCIRCLE PRODUCTS OR SERVICE EXCEED THE AMOUNTS
YOU HAVE PAID FOR YOUR APPLICABLE PURCHASE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SMACIRCLE
AND YOU.
DISPUTE RESOLUTION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO
ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN
WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between us arising out of or relating to your order
via the Smacircle Website (collectively, “Disputes”) will be governed by the
arbitration procedure outlined below.
GOVERNING LAW
Except as otherwise required by applicable law, the Terms and the resolution of any Disputes shall be governed by and construed in accordance with Law of the People's Republic of China without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
Smacircle wants to address your concerns without needing a formal legal case. Before filing a claim against Smacircle, you agree to try to resolve the Dispute informally by contacting support@smacircle.com. Smacircle will try to resolve the Dispute informally by contacting you via email. If a dispute is not resolved within 30 days after submission, you or Smacircle may bring formal proceedings.
WE BOTH AGREE TO ARBITRATE
We each agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting support@smacircle.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
ARBITRATION PROCEDURES
The International Chamber of Commerce (“ICC”) will administer the arbitration under its Rules of Arbitration. The arbitration will be held in Chinese and English in Shenzhen, China, or any other location we agree to.
ARBITRATION FEES
The ICC rules will govern payment of all arbitration fees. Smacircle will pay all arbitration fees for claims of less than US$1,000. Smacircle will not seek its legal fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
Smacircle may bring a lawsuit solely for injunctive relief to stop unauthorised use or abuse of the Smacircle products or services, or infringement of Smacircle’s intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS
You may only resolve Disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class arbitrations, class (collective) action lawsuits, private general lawsuits through a solicitor, and consolidation with other arbitrations are not allowed under our agreement.
JUDICIAL FORUM FOR DISPUTES
Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, we agree that any judicial proceeding will be brought exclusively in the Courts in Shenzhen, China. Both of us consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your order from the Smacircle Website must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
GENERAL PROVISIONS
The parties disclaim application of the United Nations Convention on Contracts
for the International Sale of Goods.
Except as otherwise stated herein, these Terms constitute the entire and
exclusive understanding and agreement between us regarding any orders you
make on the Smacircle Website, and these Terms supersede and replace any
and all prior oral or written understandings or agreements between us relating
thereto.
If for any reason a court of competent jurisdiction finds any provision of these
Terms invalid or unenforceable, that provision will be enforced to the maximum
extent permissible and the other provisions of these Terms will remain in full force
and effect.
You may not assign, delegate or transfer these Terms, by operation of law or
otherwise, without Smacircle’s prior written consent. Any attempt by you to
assign or transfer these Terms, without such consent, will be null and void.
Smacircle may freely assign or transfer these Terms without restriction. Subject to
the foregoing, these Terms will bind and inure to the benefit of the parties, their
successors, and permitted assigns.
Any notices or other communications provided by Smacircle under these Terms,
including those regarding modifications to these Terms, will be given: (i) via
email to any address you have provided to Smacircle; or (ii) by posting to the
Smacircle Website. For notices made by e-mail, the date on which the message
is sent will be deemed the date on which such notice is transmitted.
Smacircle's failure to enforce any right or provision of these Terms will not be
considered a waiver of such right or provision. The waiver of any such right or
provision will be effective only if in writing and signed by our duly authorised
representative. Except as expressly set forth in these Terms, the exercise by either
party of any of its remedies under these Terms will be without prejudice to its
other remedies under these Terms or otherwise.
You will not export or re-export, directly or indirectly, the products or services, or
any technical information related thereto, to any destination or person
prohibited or restricted by applicable law, including, without limitation, China
export control laws and regulations.
CHANGES TO THE TERMS OF SALES
You can review the most current version of the Smacircle Terms of Sales at any
time at this page.
We reserve the right, at our sole discretion, to update, change, or replace any
part of these Terms by posting updates and changes to our website. It is your
responsibility to check our website periodically for changes. Your continued use
of or access to our website or the Service following the posting of any changes
to these Terms constitutes acceptance of those changes.
ADDITIONAL TERMS MAY APPLY
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
