1. What is this Document?
1.2. The Agreement, inter alia, provides the terms that govern your access to use (i) MODNY’s website www.MODNY.in, which inter alia facilitates sale and purchase of lifestyle and fashion merchandise (“Products”) through the Platforms, and (iv) the purchase of Products, and any other service that may be provided by MODNY from time to time (collectively referred to as the “Services”).
1.3. You hereby understand and agree that the Agreement forms a binding contract between MODNY and anyone who accesses, browses, or purchases the Products and uses the Services in any manner (“User”) and accordingly, you hereby agree to be bound by the terms contained in the Agreement. If you do not agree to the terms contained in the Agreement, you are advised not to proceed with purchasing the Products or using the Services. The terms contained in the Agreement shall be accepted without modification. The use of the Services would constitute acceptance of the terms of the Agreement.
2. Terms and Conditions Applicable to Users
2.1. Users must be 18 years of age or older to register, or visit or use the Services in any manner. By registering, visiting or using the Services, you hereby represent and warrant to MODNY that you are 18 years of age or older, and that you have the right, authority and capacity to use the Services, and agree to abide by the Agreement. If a User is below 18 years of age, it is assumed that he/she is using/browsing the Platforms under the supervision of his/her parent or legal guardian and that such User’s parent or legal guardian has read and agrees to the terms of this Agreement, including terms of purchase of Products, on behalf of the minor User. Should MODNY be made aware that a User is under the age of 18 and is using/browsing the Platforms without the supervision of his/her parent or legal guardian, MODNY reserves the right to deactivate such User’s account without further notice.
2.2. The Agreement is governed by the provisions of Indian law, including, but not limited to:
• 2.2.1. the Indian Contract Act, 1872;
• 2.2.2 the rules, regulations, guidelines and clarifications framed thereunder, including the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 (“SPI Rules”) and;
• 2.2.3. the Information Technology (Intermediaries Guidelines) Rules, 2011 (“IG Rules”).
2.3. The contents of Services, information, text, graphics, images, logos, button icons, software code, interface, design and the collection, arrangement and assembly of the content on the Platforms or any of the other Services are the property of MODNY, its parent company, group companies, subsidiaries, associates, affiliates, suppliers, vendors and sister companies, as the case may be (“MODNY Content”), and are protected under copyright, trademark and other applicable laws. You shall not modify the MODNY Content or reproduce, display, publicly perform, distribute, reverse engineer or otherwise use the MODNY Content in any way for any public or commercial purpose or for personal gain.
2.4. MODNY authorises you to view and access the MODNY Content solely for identifying Products, carrying out purchases of Products and processing returns and refunds, in accordance with Return and Refund Policy, if any. MODNY, therefore, grants you a limited, revocable permission to access and use the Services. This permission does not include a permission for carrying out any resale of the Products or commercial use of the MODNY Content, any collection and use of product listings, description, or prices, and, any derivative use of the Platforms or of MODNY Content.
2.5. As means to assist the Users in identifying the Products of their choice, MODNY provides visual representations on the Platforms including graphics, illustrations, photographs, images, videos, charts, screenshots, infographics and other visual aids. While reasonable efforts are made to provide accurate visual representations, MODNY disclaims any guarantee or warranty of exactness of such visual representation or description of the Product, with the actual Product ultimately delivered to Users. The appearance of the Product when delivered may vary for various reasons.
2.6. Users may make purchases on the Platforms. For the purposes of identifying a User, MODNY may, from time to time, collect certain personally identifiable information such as your first name and last name, email address, mobile phone number, postal address, other contact information, demographic profile, etc. Users may also register themselves on the Platforms. Registration on the Platforms is one-time and you are required to remember your username and password and keep the same confidential. In the event where you have misplaced your username and password details, you can retrieve and change the same using the “forgot username/password” option on the Platforms.
2.7. The User shall assume all risks, liabilities, and consequences if his/her account has been accessed illegally or without authorisation through means such as hacking and if through such unauthorised access, a purchase of Products has been made through the Services. It is specifically clarified that payments of monies towards any Products purchased through the Services by unauthorised or illegal use of the User’s account shall entirely be borne by the User.
2.8. Display of Products for purchase on the Platforms is merely an invitation to offer. An order placed by a User for purchase of a Product constitutes an offer. All orders placed by Users on the Platforms are subject to the availability of such Product, MODNY’s acceptance of the User’s offer and the User’s continued adherence to the terms of the Agreement.
2.9. You agree to maintain and promptly update all data provided by you and to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current, incomplete, or if MODNY has reasonable grounds to suspect that the information provided by you is untrue, inaccurate, not current, incomplete, or not in accordance with the terms of the Agreement, MODNY reserves the right to indefinitely suspend, terminate or block your access to the Platforms, and refuse to provide you with access to the Platforms in future.
2.10. All rights and liabilities of MODNY with respect to any Services to be provided by it shall be restricted to the scope of the Agreement. In addition to the Agreement, you shall also ensure that you are in compliance with the terms and conditions of the third parties, whose links are contained/embedded in the Services. It is hereby clarified that MODNY shall not be held liable for any transaction between you and any such third parties.
2.11. You understand that on your registration as a User or on your purchase of Products on the Platforms, you may receive text messages and/or emails from MODNY on your registered mobile number and/or email address. These messages and/or emails could relate inter alia to your registration, MODNY’s acceptance or rejection of your offer to purchase a Product, payment information, Product despatch information, information pertaining to other activities you carry out on the Platforms and information pertaining to the promotions that are undertaken by MODNY (or third parties in connection with the Platforms) from time to time. It is specifically clarified that a text message and/or an email confirming the receipt of your order is not an acceptance from MODNY that the Product will be delivered. MODNY’s acceptance to your offer to purchase shall occur and conclude only when the Products have been despatched by MODNY and a text message and/or email confirming such despatch has been sent to you. MODNY, at all times, reserves the right to limit the quantity of items in, or cancel an order prior to despatch.
2.12. Any communication from MODNY shall be sent only to your registered mobile number and/or email address or such other contact number or email address that you may designate, for any particular transaction. You shall be solely responsible to update your registered mobile number and/or email address on the Platforms in the event there is a change. Further, MODNY may also send you notifications and reminders with respect to scheduled deliveries of the purchased Products. While MODNY shall make every endeavour to share prompt reminders and notifications relating to the delivery of purchased Products with you, MODNY shall not be held liable for any failure to send such notifications or reminders to you.
2.13. MODNY may, at any time and without having to service any prior notice to you: (i) upgrade, update, change, modify, or improve the Services or a part of the Services in a manner it may deem fit, and (ii) change the contents of the Agreement in substance, or as to procedure or otherwise; in each case which will be applicable to all Users. You hereby agree that this is in the fairness of things given the nature of the business and its operations and you will abide by them. As such, you must keep yourself updated at all times and review the terms of the Agreement from time to time. Such changes shall be made applicable when they are posted. MODNY may also alter or remove any content from the Platforms without notice.
2.14. While MODNY shall make reasonable endeavours to maintain high standards of security and shall provide the Services by using reasonable efforts, MODNY shall not be liable for any interruption that may be caused to your access or use of the Services.
2.15. Access to and registration on the Platforms is free of cost. Although unlikely, MODNY may modify the Fee, Payment and Promotions Policy to include a fee on access and browsing of the Platforms, or for use of any new service introduced by MODNY without serving prior notice on the Users.
2.16. The Services included on or otherwise made available to the Users through the Platforms are provided on an “as is” and “as available” basis without any representations or warranties, express or implied, except if otherwise specified in writing. MODNY does not covenant or warrant that:
• 2.16.1. the Services will be made available at all times;
• 2.16.2. the MODNY Content available on the Platforms is complete, true, accurate or non-misleading; and
• 2.16.3. the Products are of specified merchantability, merchantable quality and fit for use for a particular purpose.
3. User Covenants and Obligations
3.1. As mandated under the provisions of Regulation 3(2) of the IG Rules, MODNY hereby informs you that you are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information that:
• 3.1.1. belongs to another person and to which you do not have any right;
• 3.1.2. is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating to or encouraging money laundering or gambling, or otherwise harmful in any manner whatsoever;
• 3.1.3. harms minors in any way;
• 3.1.4. infringes any patent, trademark, copyright or other proprietary rights;
• 3.1.5. violates any law for the time being in force;
• 3.1.6. deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
• 3.1.7. impersonates or defames another person; or
• 3.1.8. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
3.2. You are also prohibited from:
• 3.2.1. violating or attempting to violate the integrity or security of the Platforms or the MODNY Content;
• 3.2.2. transmitting any information on or through the Platforms that is disruptive or competitive to the provision of Services by MODNY;
• 3.2.3. intentionally submitting on the Platforms, false or inaccurate information;
• 3.2.4. using any engine, software, tool, agent or other mechanism (such as spiders, robots, avatars, worms, time bombs, Easter eggs, cancel bots, intelligent agents, etc.) to navigate or search the Platforms;
• 3.2.5. attempting to decipher, decompile, disassemble or reverse engineer any part of the Platforms; or
• 3.2.6. copying or duplicating in any manner any of the MODNY Content.
3.3. You are also obligated to:
• 3.3.1. refrain from acquiring any ownership rights by downloading the MODNY Content;
• 3.3.2. read the Agreement and agree to accept the terms and conditions set out therein;
• 3.3.3. refrain from copying or modifying the MODNY Content available on the Platforms for any purpose;
• 3.3.4. comply with all applicable laws in connection with your use of the Platforms;
• 3.3.5. not refuse the delivery of purchased Products except when damages and deficiencies can be identified upfront at the time of delivery; and
• 3.3.6. use the Products for personal, noncommercial use.
3.4. You hereby authorise MODNY to declare and provide declarations to any Governmental authority on request on your behalf, including that the Products ordered by you are for personal, noncommercial use.
3.5. MODNY may disclose or transfer information provided by you to its affiliates in India and other countries, and you hereby consent to such transfer. In terms of the SPI Rules, MODNY can transfer sensitive personal data or information to any other body corporate or a person that ensures the same level of data protection that is adhered to by MODNY as provided for under the SPI Rules, only if such transfer is necessary for the performance of the lawful contract between MODNY or any person on its behalf and the User or where you have consented to such data transfer.
4. Third Party Information
4.1. All information in relation to third parties as available on the Platforms (collectively referred to as “Third Party Information”) are provided solely for your reference. MODNY is not endorsing the Third Party Information and is not responsible for any errors and representation nor is it associated with it and you shall access the Third Party Information at your own risk.
4.2. Further, it is up to you to take sufficient precautions to ensure that whatever links you select, whether from the Platforms, or other Services, is free of such items such as, but not limited to, viruses, worms, Trojan horses, defects and other items of a destructive nature.
5. Intellectual Property Rights
5.1. All the intellectual property used on the Platforms by MODNY, including the MODNY Content, shall remain the property of MODNY, its parent company, group companies, subsidiaries, associates, affiliates, suppliers, vendors, sister companies or of any third party hosting such intellectual property on the Platforms. Except as provided in the Agreement, the materials may not be modified, copied, reproduced, distributed, republished, downloaded, displayed, sold, compiled, posted or transmitted in any form by any means, including but not limited to, electronic, mechanical, photocopying, recording or other means, without the prior express written permission of MODNY, its parent company, group companies, subsidiaries, associates, affiliates, suppliers, vendors, sister companies or any third party hosting such material on the Platforms, as the case may be.
5.2. If you believe that your intellectual property rights have been used in a way that raises concerns of infringement, please write to us at email@example.com and let us know of your concerns.
6. Unlawful or Prohibited Use
You warrant to MODNY that you will comply with all applicable laws, statutes, ordinances and regulations regarding the use of the Services and any other related activities. You further warrant that you will not use the Platforms in any way prohibited by terms contained in the Agreement or under applicable law.
7.1. You acknowledge and undertake that you are accessing the Services and purchasing the Products at your own risk and that you are using prudent judgment before placing an order for a Product or availing any Services through the Platforms. MODNY shall, at no point, be held liable or responsible for any representations or warranties in relation to the Products. Refund of the price paid for the purchase of a Product or replacement thereof shall be governed by the Return and Refund Policy which may be accessed.
7.2. MODNY does not provide or make any representation, warranty or guarantee, express or implied about the Platforms, Products or the Services, and all implied warranties under law or contract are to the maximum extent possible hereby disclaimed.
You hereby agree to indemnify and hold harmless MODNY , its affiliates, officers, directors, employees, consultants, licensors, agents and representatives from any and all claims, losses, damages, and/or costs (including reasonable attorney fees and costs) arising from (i) your access to or use of the Services or Products, (ii) violation of the Agreement, (iii) infringement, or infringement by any other user of your account with MODNY, (iv) action or inaction on behalf of MODNY ’s third party affiliates, manufacturers, vendors, suppliers and logistic partners in providing services; and (v) infringement of any intellectual property or other right of any person or entity. MODNY shall notify you promptly of such claim, loss, liability, or demand, and in addition to your foregoing obligations, you agree to provide MODNY with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage or cost.
9. Grievance Section
In accordance with the provisions of the SPI Rules, any grievances which you may have with respect to the information shared by you with MODNY hereunder and its treatment, may be directed by you to the grievance section of MODNY at firstname.lastname@example.org
If any provision of the Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision and the remaining part of such provision and all other provisions of the Agreement shall continue to be in full force and effect.
11. Term and Termination
11.1. The Agreement will remain in full force and effect while you use any Service in any form or capacity.
11.2. MODNY reserves the right to terminate its Services provided to you in the event of breach of any terms contained in the Agreement, misrepresentation of information, any unlawful activity or if MODNY is unable to verify or authenticate any information you submit to it.
11.3. The User may terminate the Agreement at any time, provided that the User discontinues any further use of the Platforms or Services.
11.4. It is specifically clarified that any termination of the Agreement by a User shall not cancel the User’s obligation to pay for a Product purchased on the Platforms, or any other obligation which has accrued, or is unfulfilled and relates to the period, prior to termination.
11.5. Any provision of the Agreement which imposes an obligation or creates a right that by its nature will be valid after termination or expiration of the Agreement shall survive the termination or expiration of the Agreement.
12. Dispute Resolution and Governing Law
12.1. The Agreement and any contractual obligation between MODNY and you under the Agreement shall be governed by the laws of India, subject to the exclusive jurisdiction of the courts at Mumbai, Maharashtra.
12.2. All disputes will be subject to arbitration at Bengaluru, Karnataka in accordance with the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be conducted in the English language. MODNY and the disputing User shall be entitled to appoint 1 (one) arbitrator each and the 2 (two) arbitrators so appointed will jointly appoint the 3rd (third) arbitrator.
12.3. Arbitration awards shall be reasoned awards and shall be final and binding on MODNY and the disputing User, and shall be enforceable in any court of competent jurisdiction.
MODNY ’s failure to enforce any provision of the Agreement or respond to a breach by a User or User shall in no way imply a waiver of MODNY’s right to subsequently enforce any provision of the terms of the Agreement or to act with respect to similar breaches by a User or User.
14.1. Headings, subheadings, titles, subtitles to clauses, sub-clauses and paragraphs are for information only and shall not form part of the operative provisions of the Agreement and shall be ignored in construing the same.
14.2. Words denoting the singular shall include the plural and words denoting any gender shall include all genders.
14.3. The words “include” and “including” are to be construed without limitation.