Materiall Inc (Company) is the author and publisher of the internet resource ‘Materiall Collections App’ on Shopify Platform. as well as other connected software and applications provided , including but not limited to the mobile applications (referred to as Application, and together with websites referred to as Web Services). Materiall Inc provides online retailers, henceforth referred to as The Merchant (defined below) to showcase their catalog online, and provides The User (defined below) with dynamic and customised virtual showrooms, in partnership with its employees, agents, consultants and other third parties (together referred to as Partners ).
A. Materiall Inc is, inter alia, engaged in providing higher product engagement to The Merchant and individualised virtual showrooms to The User/Merchant.
B. The User (defined below) has read all the provisions set out herein, and has agreed to avail the Web Services offered by The Company.
C. The Merchant (defined below) has read and understood all the terms and provisions set out herein, and has agreed to avail the Web Services offered by the Company.
1. DEFINITIONS AND INTERPRETATION
1.1. For the purposes of this Agreement, all terms that have been initially capitalized shall have the meanings set out herein:
(a) Website Assistant Services means and includes the services provided by Materiall Inc., through the Web Services, including in relation to organising the product catalogue, enriching the catalogue data with more attributes that are specific to the product type, grouping related products together, capturing and analysing user actions and the related data
(b) Personal Data means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, or any combination of such features with any other information, and shall include any inference drawn from such data for the purpose of profiling
(c) The Merchant means an online retailer providing merchandise to the User through the Shopify platform
(d) Sensitive Personal Data means such personal data, which may, reveal, be related to or constitute financial data, and personal information such as name, age, gender, contact information such as phone number and address
(e) User shall mean and include any person who accesses, uses, or in any manner avails the Web Services, and shall include any person who has registered himself with the e-commerce site created using the Shopify Platform.
1.2. In this Agreement (defined below), unless otherwise specified:
(a) Reference to any statute or statutory provision includes a reference to that statute or statutory provision as amended, extended or re-enacted or consolidated from time to time and all statutory instruments or orders (including delegated legislation whether by way of rules, notifications, bye-laws, guidelines, as amended, extended or re-enacted or consolidated from time to time);
(b) Words elsewhere defined/explained herein shall have the meaning so ascribed;
(c) Words denoting the singular shall include the plural and vice versa; and
(d) Words denoting any gender include all genders.
2. NATURE AND APPLICABILITY OF THE TERMS
2.2. This Agreement sets out the terms and conditions under which the Users/Merchants are allowed to use the Web Services, and describes the manner in which the Company shall treat the User/Merchants’ accounts while the User/Merchants are registered with Materiall Inc. If any User/Merchant has any questions about any part of the Agreement, the User/Merchant may contact the Company at firstname.lastname@example.org.
2.3. This Agreement is applicable to:
(a) All persons using the Web Services of Materiall Inc, including Users and Merchants who are registered with and through Shopify; and
(b) All Web Services made available by Materiall Inc on the Website or the Shopify Platform.
2.4. By downloading, installing or accessing the Web Services, each person doing so irrevocably accepts all the terms and conditions stipulated herein, agrees to fully abide by them, whether or not they are registered as a User/Merchant with The Company.
2.5. Each User/Merchant agrees and acknowledges that he has duly read all the terms and conditions set out herein, and consented thereto.
2.6. This Agreement supersedes all previous oral and written terms and conditions (if any) communicated to the User/Merchant/Merchant. By availing any Service, the User/Merchant signifies agreement and acceptance to this Agreement.
2.7. The Web Services may change from time to time, at the sole discretion of the Company, and the Agreement will apply to the User/Merchant’s visit to and the User/Merchant’s use of the Website or the Application, as well as to all information provided by the User/Merchant on the Website or the Application at any given point in time. Should the User/Merchant have any objection to such amendment or modification, the User/Merchant shall be at liberty to stop availing of the Web Services. The User/Merchant shall also be entitled to inform the Company of any objection to such amendment or modification, and in such an event, the Company shall make best efforts to explain the reasons for such amendment or modification, as the case may be. Despite such clarification, if the User/Merchant is not satisfied, the User/Merchant shall be free to opt out of availing the Web Services.
2.8. The User/Merchant is advised to read the Agreement at regular intervals. Any use of the Web Services following any such modification by the User/Merchant constitutes such User/Merchant’s consent to follow and be bound by the Agreement so modified. Any additional terms and conditions, disclaimers, privacy policies and other policies applicable in general and / or to specific areas of either the Website or the Application, or to particular Web Services are also considered as part of this Agreement.
2.9. The User/Merchant hereby acknowledges that they will be bound by this Agreement for availing any of the Web Services offered by the Company. If the User/Merchant does not agree with any part of the Agreement, the User/Merchant may choose not to avail the Web Services. After availing of the Web Services having consented to this Agreement, the User/Merchant shall not be entitled to claim not to be bound by the terms set out herein.
2.10. The User/Merchants’ access to and the use of the Web Services will be solely at the discretion of the Company.
3. CONDITIONS OF USE
3.1. User/Merchant agrees to use the Web Services in the intended manner only
4. User/Merchant ACCOUNT
4.1. In order to create a User/Merchant account on the platform of the Web Services, the Company may require the User/Merchant to provide details regarding their name, ID, email address, address, date of birth, gender, phone number and password chosen by the User/Merchant. Other optional information and/or documentation may be requested on the registration page.
4.2. The Company may, in future, include other optional requests for information from the User/Merchant in order to enable the Company to customize the Web Services to deliver personalized information to the User/Merchant. If the User/Merchant objects to any of the changes, and no longer wishes to use the Web Services, the User/Merchant may write to the Company at email@example.com to delete their account. If the User/Merchant uses the Web Services after the notice of change being made known to the User/Merchant, it is understood that such a User/Merchant has provided their consent to the changed terms.
4.3. It is the responsibility of the User/Merchant to provide their correct mobile number and email address, and update the same on the platform of the Web Services, if required. Reminders and notifications may be sent to the account associated with this mobile number and / or email address. Every time the User/Merchant change any contact information, the Company will send a confirmation on the updated mobile number / email address. the Company is not responsible for any loss or inconvenience caused due to the User/Merchant not updating their contact information.
5. DATA PRIVACY
5.1. The User/Merchant has read, understood, and expressly consented to the following terms regarding data privacy, and acknowledges that they have the knowledge of:
(a) The fact that certain information is being collected;
(b) The purpose for which the information is being collected;
(c) The intended recipients of the information;
(d) The nature of collection and retention of the information; and
(e) The various rights available to such User/Merchants in respect of such information.
5.2. The User/Merchants’ use of and access to the Web Services of the Company is contingent on their acceptance of the Agreement, which also involves acceptance of the terms regarding data privacy. Any User/Merchant that does not agree with any provisions of the same has the option to discontinue the Web Services provided by the Company immediately.
5.3. the Company may collect information related to the device used by the User/Merchant to access the Web Services, the location from which the Web Services were accessed, and anonymized data of such usage. The information so collected will be used only for improving the quality of the Web Services and to build new Web Services.
5.4. the Company through its Web Services may collect the User/Merchants’ email address and phone number for the purposes of communication and analytics.
5.5. Nature of Information Collected: the Company may collect data that personally identifies the User/Merchant or could be used to personally identify the User/Merchant. The data so collected by the Company may constitute the User/Merchants’ Personal Data, including Sensitive Personal Data, such as the following:
(a) User/Merchant’s name, age, gender, address (including pin code), contact number and email address;
(b) Financial information regarding bank account, credit or debit card, Unified Payment Interface (UPI), or any other payment instrument details;
(c) User/Merchant ID and password upon registering with the Web Services of the Company;
(d) Any other information voluntarily shared by the User/Merchant with the Company.
5.6. Information that is freely available in the public domain or accessible under any other law will not be regarded as Personal Data or Sensitive Personal Data or information.
5.7. All the information, including Personal Data and Sensitive Personal Data, provided by the User/Merchant, is voluntary.
5.8. Purpose of Collection of Information: The User/Merchant understands that the Company may use the data provided for the following purposes:
(a) For research, statistical analysis, and business intelligence purposes, commercial purposes in a non-personally identifiable form;
(b) For sale or transfer of such research, statistical or intelligence data in an aggregated or non-personally identifiable form to the Partners;
(c) For publishing research findings and / or statistical analysis derived from such data;
(d) For contacting User/Merchants for offering new products or services for the Company, and for taking Service feedback from the User/Merchants;
(e) For analyzing software usage patterns for improving product design and utility; and
(f) For analyzing anonymized information for commercial use.
5.9. Explicit Consent: The User/Merchant hereby agrees and acknowledges that he has understood the terms and conditions contained in this Clause 5, and hereby provides his explicit consent to each of the terms contained herein, including in relation to the collection, processing, transfer, and any handling of his Personal Data.
5.10. Correction of Information: The User/Merchant is responsible for maintaining the accuracy of the information provided to the Company. If the information so provided changes at any time, the User/Merchant may correct, complete, update or delete such information, or make a request to the Company to correct, complete, update or delete such information by writing to the Company at firstname.lastname@example.org. the Company will make good faith efforts to make requested changes in their active databases as soon as reasonably practicable. If the information provided by the User/Merchant is untrue, inaccurate, out of date or incomplete (or becomes untrue, inaccurate, out of date or incomplete), or the Company has reasonable grounds to suspect that the information provided by you is untrue, inaccurate, out of date or incomplete, the Company may, at its sole discretion, discontinue the provision of the Web Services to such a User/Merchant.
5.11. Deletion of Account: If the User/Merchant chooses to delete their account or rescind their consent to the use and storage of their Personal Data and Sensitive Personal Data by the Company, such a User/Merchant may make a request for the same by writing to the Company at email@example.com.
5.12. Retention of Information: the Company will retain the User/Merchants’ Personal Data and Sensitive Personal Data only for the purposes stated, and for the period during which the account of the User/Merchant is on the database of the Company. the Company shall not retain any Personal Data or Sensitive Personal Data of any User/Merchant for a period longer than required for the purposes for which such data was collected, or is otherwise required, to be retained, under any other law for the time being in force. The User/Merchant expressly consents to the retention of information by the Company and/or its Partners, in terms of this Clause.
5.13. Financial Information: In consideration for the Web Services, the Company may require the User/Merchant to make payments through online payment mechanisms such as credit card, debit card, net banking, UPI, or any other online payment mechanism provided on the Website and/or Application. For this, the Company and/or its Partners, as deemed necessary, will collect such User/Merchant’s financial information such as credit / debit card number, registered name, expiry date of the credit / debit card, card verification value (CVV), UPI ID, and / or other requisite financial information. Such information will be used by the Company and / or its Partners for the purposes of billing and payment processes, including but not limited to the use and disclosure of such information to third parties (for example, payment gateways), as necessary to complete such billing operation. Verification of credit information, however, is accomplished solely by the User/Merchant through the authentication process offered by a third party payment gateway. User/Merchant’s credit card / debit card / UPI details are transacted upon secure sites of approved payment gateways which are digitally under encryption, thereby providing the highest possible degree of care as per current technology. The User/Merchant expressly consents to the collection, storage, transfer, and handling of the financial information by the Company and/or its Partners.
5.14. Transfer of Information: the Company may disclose or transfer the Users’ Personal Data including Sensitive Personal Data, and other information, to the following:
(a) The Merchant
(b) Its Partners, for the purposes including but not limited to providing and / or improving the Web Services, data analytics, research and development. The Partners follow the same data security standards and safeguards as the Company. Accordingly, the Partners have put in place all the security requirements mandated by law, in order to secure the privacy of the User/Merchants’ data, and have implemented the best market practices and security policies, rules and technical measures to protect the data that it has under its control from unauthorised access, improper use or disclosure, unauthorised modification and unlawful destruction or accidental loss. However, for any data loss or theft due to unauthorized access to the User/Merchant’s electronic devices through which the User/Merchant avails the Web Services, the Partners shall not be held liable for any loss whatsoever incurred by the User/Merchant. The User/Merchant expressly consents to such transfer by the Company to its Partners.
5.15. User/Merchant Internet Protocol: Due to the communications standards on the Internet, when a User/Merchant uses the Web Services, the Company automatically receives the URL of the site from which the User/Merchant visited the Web Services of the Company. the Company also receives the Internet Protocol (IP) address of each User/Merchant’s computer, the User/Merchant’s computer / device operating system, the type of web browser the User/Merchant is using, as well as the name of User/Merchant’s internet service provider. This information is used to analyze overall trends to help the Company improve its Web Services. The linkage between User/Merchant’s IP address and User/Merchant’s personally identifiable information may be available to the Company or the Partners, but is not shared with other third parties. Notwithstanding the above, the Company may share some of the aggregate findings (not the specific data) in anonymized form (i.e., non-personally identifiable) with advertisers, sponsors, investors, strategic partners, and others in order to help grow its business. The User/Merchant expressly consents to the collection, storage, transfer, and handling of the internet protocol information by the Company and/or its Partners.
5.18. Location Information: the Company may seek the permission of the User/Merchant, to use the geolocation feature of the User/Merchant’s mobile device and / or any other electronic device being used to access the Web Services. the Company does not share the User/Merchant location information with other any third party. The User/Merchant may opt out of location based services on their electronic device by changing the relevant / applicable setting on their device. The User/Merchant expressly consents to the collection, storage, transfer, and handling of the location information by the Company and/or its Partners.
5.19. Additional Information: the Company may ask the User/Merchants to take surveys regarding their experiences with features of the Web Services. Such surveys may ask the User/Merchants for their demographic information such as their age, gender, and education. the Company shall use the survey information for evaluation and quality improvement purposes. Such demographic information may be stored for future evaluation and quality improvement activities.
5.20. Archiving: If any questions are sent to the Company using email, such questions will be forwarded to the Partners associated with the Company, who are qualified to address such questions. The Medical Practitioner on behalf of the Company will make best efforts to provide the User/Merchant with a complete and satisfactory response. Such questions and their corresponding responses will be archived by the Company, for the purposes of research and analytics. The User/Merchant expressly consents to such archiving by the Company and/or its Partners.
5.21. Unauthorised Use: the Company has put in place all the security requirements mandated by law, in order to secure the privacy of the User/Merchants’ data. Further, the Company also undertakes a periodical review of its security safeguards. Further, the Company has undertaken a data protection impact assessment in order to ensure its security safeguards. Accordingly, the Company has implemented the best market practices and security policies, rules and technical measures to protect the data that it has under its control from unauthorised access, improper use or disclosure, unauthorised modification and unlawful destruction or accidental loss. However, for any data loss or theft due to unauthorized access to the User/Merchant’s electronic devices through which the User/Merchant avails the Web Services, the Company shall not be held liable for any loss whatsoever incurred by the User/Merchant.
5.22. Third Party Use: If the User/Merchant provides anyone else access to their personal health record, the User/Merchant understands that they would be deemed to be responsible for all actions, access, transaction that such a person takes related to the User/Merchant’s personal health record either on their own or independently. the Company is not responsible or liable for any action, transaction, loss, leakage or any other liability arising out of this.
5.23. Passwords: The User/Merchant must ensure there is no unauthorized access to their password, computer, mobile phone and / or any other electronic device. the Company does not undertake any liability for any unauthorized use of the User/Merchants’ account and password. If the User/Merchant suspects any unauthorized use of their account, such User/Merchant must immediately notify the Company by sending an email to firstname.lastname@example.org. The User/Merchant shall be liable to indemnify the Company due to any loss suffered by them due to such unauthorized use of the User/Merchant’s account and password.
5.24. The Company takes User/Merchants’ data privacy very seriously. Other than as specifically stated in this Agreement, the Company will only disclose the User/Merchants’ data in the event it is required to do so by law, rule, regulation, law enforcement agency, governmental official, legal authority or similar requirements, or when the Company, in its sole discretion, deems it necessary in order to enforce or apply this Agreement.
5.25. Notwithstanding any of the above, the Company is not responsible for the confidentiality, security or distribution of the User/Merchants’ personal information by its Partners and third parties. Further, the Company shall not be responsible for any breach of security or for any actions of any third parties or events that are beyond the reasonable control of the Company including, acts of government, computer hacking, unauthorised access to computer data and storage device, computer crashes, breach of security and encryption, poor quality of internet service or telephone service of the User/Merchant etc.
6. RIGHTS AND OBLIGATIONS
6.1. While providing information to the Company, the User/Merchant shall not display, upload, modify, publish, transmit, update or share any information that:
(a) Is intentionally incomplete, false or inaccurate;
(b) Belongs to another person and to which the User/Merchant does not have any right to;
(c) Is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, 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 whatsoever;
(d) Harm minors in any way;
(e) Infringes any patent, trademark, copyright or other proprietary rights;
(f) Violates any law for the time being in force;
(g) Impersonates another person;
(h) Contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) Threatens the unity, integrity, defence, security or sovereignty of India or the US, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
6.2. The User/Merchant shall not copy or duplicate, in any manner, any content belonging to the Company, or any other information available on the platform of the Web Services of the Company.
6.3. The User/Merchant shall not transmit any information that is disruptive or competitive or prejudicial to the provision of Web Services by the Company.
6.4. Upon obtaining knowledge by an affected person in writing, or on being notified by the appropriate Government that the Web Services are being used by the User/Merchant to commit any unlawful act and / or is being used in violation of this Clause, the Company shall be entitled to remove or disable access to the material or information that is in contravention of this Clause. the Company is entitled to act within thirty six hours of obtaining such knowledge and, where applicable, work with User/Merchants to disable such information that is in contravention of applicable law. the Company shall also be entitled to preserve such information and associated records for at least 90 (ninety) days for production to governmental authorities for investigation purposes.
6.5. In case of non-compliance with any applicable laws, rules or regulations, or this Agreement by a User/Merchant, the Company has the right to immediately terminate the access or usage rights of the User/Merchant to the Web Services and to remove non-compliant information from the Web Services.
6.6. the Company may disclose or transfer User/Merchant-generated information to its governmental authorities in such manner as required by applicable law, and the User/Merchant hereby consents to such transfer. the Company will comply with any duly-issued government or court directions to disable access to the User/Merchant-generated information, should it be found to be illegal by a competent governmental authority.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. The contents of the Web Services are protected by intellectual property laws of the US including without limitation to trademark and copyright laws. Reproduction, retransmission, public and / or commercial use of any or all the material on the platform of the Web Services are prohibited. The logos, service marks and trademarks displayed on the platform of the Web Services are the property of the Company or have been licensed to the Company by the relevant owners for use. The User/Merchant may use this material only as expressly authorized by the Company, and shall not copy, transmit or create derivative works of such material without express authorization from the Company.
7.2. The User/Merchant acknowledges and agrees that they shall not upload, post, reproduce or distribute any content on or through the Web Services that is protected by copyright or other proprietary right of a third party, without obtaining the permission of the owner of such right. Any copyrighted or other proprietary content distributed on or through the Web Services with the consent of the owner must contain the appropriate copyright or other proprietary rights notice. The unauthorized submission or distribution of copyrighted or other proprietary content is illegal and could subject the User/Merchant to personal liability or criminal prosecution.
7.3. Nothing displayed / provided on the platform of the Web Services should be construed as granting, by implication, or otherwise, any license or right to use any trademarks without written permission from the Company.
8. REPRESENTATIONS AND WARRANTIES
8.1. The Web Services provided by the Company are provided on an “as is” and “as available” basis, and without any warranties or conditions.
8.2. The Company is not, in any manner whatsoever, liable for any of the actions of the Merchant.
8.3. the Company does not provide or make any representation, warranty or guarantee, express or implied about the Web Services.
8.4. the Company does not guarantee the accuracy or completeness of any content or information provided by User/Merchants on the platform of the Web Services.
8.5. To the fullest extent permitted by law, the Company disclaims all liability arising out of the User/Merchant’s use or reliance upon the Web Services, representations and warranties made by other User/Merchants, the content or information provided by the User/Merchants on the platform of the Web Services, or any opinion or suggestion given or expressed by the Company or any User/Merchant in relation to any User/Merchant or Web Services provided by such User/Merchant.
8.6. The Web Services may be linked to the website of third parties, affiliates and business partners. the Company has no control over, and is not liable or responsible for content, accuracy, validity, reliability, quality of such websites. Inclusion of any such link on the platform of the Web Services does not imply that the Company endorses the linked site. User/Merchant may use the links and these services at their own risk.
8.7. The Company assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect the User/Merchant’s equipment / device on account of User/Merchant’s access to, use of, or browsing the Web Services, or the downloading of any material, data, text, images, video content, or audio content from the Web Services. If a User/Merchant is dissatisfied with the Web Services, User/Merchant’s sole remedy is to discontinue using the Web Services.
9.1. the Company reserves the right to suspend or terminate a User/Merchant’s access to the Web Services with or without notice, and in its sole discretion, for any reason whatsoever, including but not limited to cases where:
(a) Such a User/Merchant breaches any terms and conditions of this Agreement;
(b) Any third party reports violation of any of its right as a result of such a User/Merchant’s use of the Web Services;
(c) the Company is unable to verify or authenticate any information provided by the User/Merchant;
(d) the Company has reasonable grounds for suspecting any illegal, fraudulent or abusive activity on part of such User/Merchant; or
(e) the Company believes, in its sole discretion, that the User/Merchant’s actions may cause legal liability for such User/Merchant, other User/Merchants or for the Company, or are contrary to the interests of the Web Services.
9.2. Once temporarily suspended, indefinitely suspended or terminated, the User/Merchant may not continue to use the Web Services under the same account, a different account or re-register under a new account.
10. LIMITATION OF LIABILITY
10.1. In no event shall the Company be liable for any direct, indirect, punitive, incidental, special, consequential damages or any other damages resulting from:
(a) The use of or the inability to use the Web Services;
(b) The unauthorized access to or alteration of the User/Merchant’s transmissions or data.
10.2. the Company shall not be held responsible for non-availability or access to the Web Services during periodic maintenance operations or any unplanned suspension of access that may occur due to technical reasons or for any reason beyond the control of the Company.
10.3. The User/Merchant agrees and acknowledges that the Company is merely providing a service on the Shopify platform on which the User/Merchant is able to gain access to a Merchant’s store, and the Company is in no manner whatsoever responsible for any product or service provided by such Merchant to the User. Specifically, the User agrees and acknowledges that the Company shall not be liable to the User for any negligence, commission, or omission by the Merchant, and that the User shall not implead the Company in any proceedings whatsoever that he may initiate against the Merchant in respect of the Web Services, including for any deficiency of services.
11.1. The User/Merchant agrees to indemnify and hold harmless the Company, its Partners, affiliates, officers, directors, employees, consultants, licensors, agents, representatives, from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from User/Merchant’s access to or use of Service, violation of this Agreement, or infringement, or infringement by any other User/Merchant of their account, of any intellectual property or other right of any person or entity.
11.2. the Company shall notify the User/Merchant of any such claim, loss, liability, or demand, and in addition to the User/Merchant’s foregoing obligations, the User/Merchant agrees to provide the Company with reasonable assistance, at their own expense, in defending any such claim, loss, liability, damage, or cost.
12. APPLICABLE LAW AND DISPUTE SETTLEMENT
12.1. This Agreement shall be governed by and construed in accordance with the laws of US.
12.2. The courts of Milpitas, California shall have exclusive jurisdiction in case of any dispute, controversy or claims arising out of or relating to this Agreement or the breach, termination or invalidity thereof.
The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement.
The waiver of any breach or default of the terms of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
15. GRIEVANCE OFFICER
15.1. If a User/Merchant has any questions concerning the Company, the Web Services, this Agreement, or anything related to any of the foregoing, such a User/Merchant may write to the Company at email@example.com.
15.2. If a User/Merchant has any grievance with respect to the Web Services, including any discrepancies and grievances with respect to processing of information, such a User/Merchant may contact the Company’s Grievance Officer at: firstname.lastname@example.org.