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.