LexStart July 7, 2017
Privileged and Confidential Draft for discussion purposes
TERMS OF USE
1. Introduction
1. This document is an electronic record in terms of the Information Technology Act, 2000 and rules thereunder as applicable and the provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
2. This document is published in accordance with the provisions of Rule 3(1) of the Information Technology (Intermediaries Guidelines) Rules, 2011 that requires publishing the rules and regulations, privacy policy and terms of use for access or usage of this website.
3. The domain name www.safegold.in (hereinafter referred to as the “Website”) is owned by Digital Gold India Private Limited, a company incorporated under the Companies Act, 2013 with its registered office at 7/4 Sorabh Bharucha Marg, Colaba, Mumbai, Maharashtra 400005, ("Digigold").The objective of the Website is to facilitate buying safe keeping/vaulting and delivery/fulfilmentof gold and providing related services thereto that may be offered by Digigold to Digigold’s customers on the Website (“Services”).
4. Digigold does not guarantee any returns, on any transactions consummated vis-à-vis the Website, to any person, either directly or indirectly. The Customer (hereinafter referred to as “You”) shall be solely responsible for undertaking appropriate and effective due diligence and related analysis before investing pursuant to these Terms of Use. Digigold may publish research and opinions on this Website, for general information purposes. You may not rely on any such information for forming yourpurchasedecisions. You further acknowledge and agree that Digigold and its officers, directors, employees, agents and affiliates will have no liability for your purchasedecisions usingthe Website.
5. The term “Customer” shall mean an individual resident in India, who is willing to avail Digigold’sServices using the Website and is registered as a ‘customer’ on the Website.
6. For the purpose of these Terms of Use (“Terms”), wherever the context so requires, the term:
6.1. “Custome rAccount” shall mean the account created whether by you or otherwise, in accordance with these Terms.
6.2. “Customer Account Information” shall mean the information provided by you for the purpose of creation of the Customer Account.
6.3. “Customer Request” shall mean a Delivery Request, Sale Request or Exchange Request placed by you in relation to the Customer Gold.
6.4. “Distributor” shall mean anyPerson resident in India, in accordance with applicable laws, who is willing to act as an intermediary for the provision of Services by Digigold.
6.5. “Force Majeure Event” shall mean any event that is beyond the reasonable control of Digigold and shall include, without limitation, sabotage, fire, flood, explosion, act of God, civil commotion, strikes, lockouts or industrial action of any kind, riots, insurrection, war, acts of government, computer hacking, civil disturbances, unauthorised access to computer data and storage device, computer crashes, virus attacks, breach of security and encryption, and any other similar events not within the control of Digigoldand which Digigoldis not able to overcome.
6.6. “Person” shall meanan individual, a corporation, a partnership, a joint venture, a trust, an unincorporated organization and any other legal entity.
2. ACCEPTPANCE OF TERMS
2.1. Digigoldreserves the right, at its sole discretion, to change, modify, add or remove portions of these Termsat any time by posting update notification on the Website and communicating the notification to you in accordance with these terms. It is your sole responsibility to review these Terms based on such update notifications. Your continued use of the Website or Services following the posting of changes shall be deemed to mean that you accept and agree to the revisions. As long asyoucomply with these Terms, Digigoldgrants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Website.
2.2. Accessing, browsing or otherwise using the Website indicates your agreement to all the terms and conditions under these Terms. You are advised to read these Terms carefully before proceeding. By impliedly or expressly accepting these Terms, you also accept and agree to be bound by all Digigold’s policies, including but not limited to its privacy policy (“Privacy Policy”), as amended from time to time.
2.3. Youmay not use the Website if you do not accept the Terms or are unable to be bound by the Terms. As a condition of your access to and use of the Website, you agree that you will comply with all applicable laws and regulations when using the Website.IfDigigold is of the opinion that the Customer Account is being used by you for any unlawful purpose, Digigoldshall have the right to take all action available to it, including black-listing or blocking you from using the Services on its Website or intimating the relevant authorities of such unlawful activities.
3. Member Eligibility
Use of the Website is available only to Persons who can enter into legally binding contracts under the Indian Contract Act, 1872and to Persons resident in India. Persons who are "incompetent to contract" within the meaning of the Indian Contract Act, 1872 including minors, un-discharged insolvents and persons of unsound mind are not eligible to use the Website. Any person under the age of 18 shall not register on the Website and shall not transact on or use the Website. Digigoldreserves the right to terminate any Person’s membership and/or refuse to provide such Person with access to the Website if it is brought to Digigold’snotice or if it is discovered that such Person is not eligible to use the Website.
4. CUSTOMeR’S AccountAND REGISTRATION OBLIGATIONS
4.1. The Website allows very limited and restricted access to the Services for unregistered users.
4.2. You shall have an option to either place an order for gold directly on the Website or with a Distributor.
4.3. Creation of Customer Account on the Website
4.3.1. For placing an order on the Website in accordance with these Terms, youwill have to create the Customer Account on the Website prior to placing such an order, which can be done either directly by sending a request on the Website or through an invitation sent by Digigold. As part of the registration process, you will be required to provide certain Customer Account Information and details, including your mobile number, an e-mail id, password and any other information deemed necessary by Digigold.
4.3.2. While registering with the Website to avail the Services, you shall not:
(i) create any Customer Account for anyone other than yourself,unless such person's prior permission has been obtained;
(ii) use a Customer Account that is the name of another person with the intent to impersonate that person; and
(iii) use a name for the Customer Account that is a name that is otherwise offensive, vulgar or obscene or otherwise unlawful.
4.4. Creation of Customer Account by the Distributor
4.4.1. For placing an order through the Distributor in accordance with these Terms, you authorize the Distributor to create an account, on your behalf, prior to placing such an order. As part of the registration process, you will be required to provide certain Customer Account Information and details, including your mobile number, an e-mail id, password and any other information deemed necessary by Digigold and/or Distributor (as the case may be).
4.4.2. For the purpose of this Clause 4.4, you agree to ratify such authorization retrospectively. You further agree and authorise the Distributor to share any and all of your information with Digigold as and when requested by Digigold without requring any further authorisations from you.
4.4.3. You hereby agree and understand that these Terms shall be applicable to you irrespective of whether the Customer Account is created directly by you or by the Distributor, for and on your behalf. Further, these Terms shall apply mutatis mutandis for any orders placed by you, whether for purchase or delivery/fulfilment of gold, with the Distributors.
4.4.4. The Distributors shall be authorized for a limited purpose of representing you and acting on your behalf to take orders for purchase of gold or delivery/fulfilment thereof in accordance with these Terms.
4.5. You hereby acknowledge that you will be fully responsible for all activities that occur under the Customer Account.
4.5.1. Prior to placing an order, you may be required to provide certain know your customer (KYC) documentation and other information as may be required by Digigold and in such form and manner as it may deem fit.
4.5.2. Once such documentation and other information is provided by you to Digigold or the Distributor (as the case may be), you shall be entitled to place an order (or authorize the Distributor to place an order on your behalf) on the Website (“Customer Order”).
4.6. Customer’s Obligations
4.6.1. Youwill be responsible for maintaining the confidentiality of the Customer Account Information, and shall be fully responsible for all activities that occur under the Customer Account. You agree to, (i) immediately notify Digigoldof any unauthorised use of the Customer Account Information or any other breach of security; and (ii) exit from the Customer Account at the end of each session. Digigoldcannot and will not be liable for any loss or damage arising from your failure to comply with this Clause. You may be held liable for losses incurred by Digigoldor any user or visitor of the Website due to authorised or unauthorised use of the Customer Account, as a result ofyour failure in keeping the Customer Account Information confidential.
4.6.2. You shall ensure that the Customer Account Information provided by you in the Website’s registration form is complete, accurate and up-to-date. Use of another Customer’s account information for availing the Services of the Website is expressly prohibited.
4.6.3. Youagree that if youprovide any information that is untrue, inaccurate, not current or incomplete, (or becomes untrue, inaccurate, not current or incomplete) or if Digigoldhas reasonable grounds to suspect that such information is untrue, inaccurate, not current, incomplete, or not in accordance with the these Terms, Digigoldshall have the right to indefinitely suspend or terminate or block access to the Customer Account on the Website and refuse to provide youwith access to the Website.
5. Use of the Website and services
5.1. You agree, undertake and covenant that, during the use of the Website, you shall not host, display, upload, transmit or share any information that:
5.1.1. belongs to another person or entity and to which you do not have any right;
5.1.2. is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another person's privacy, hateful or racially or ethnically objectionable, or encouraging money laundering or gambling, or otherwise unlawful in any manner whatsoever;
5.1.3. is misleading in any way;
5.1.4. involves the transmission of "junk mail", "chain letters", or unsolicited mass mailing or "spamming";
5.1.5. infringes upon or violates any third party's rights including, but not limited to, intellectual property rights, rights of privacy (including without limitation unauthorized disclosure of a person's name, e-mail address, physical address or phone number) or rights of publicity;
5.1.6. tries to gain unauthorized access or exceeds the scope of authorized access to the Website or to profiles, blogs, communities, account information, bulletins, or other areas of the Website or solicits passwords or personally identifying information for commercial or unlawful purposes from other users of the Website;
5.1.7. interferes with another user’s use of the Website;
5.1.8. refers to any website or URL that, in Digigold’s sole discretion, contains material that is inappropriate for the Website or any other website, contains content that would be prohibited or violates the letter or spirit of these Terms;
5.1.9. deceives or misleads the addressee/ users about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
5.1.10. contains software viruses or any other computer codes, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; or contains any trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, diminish value of, covertly intercept or steal any system, data or personal information; or
5.1.11. violates any law for the time being in force.
5.2. You must comply with the provisions contained in these Terms and the Privacy Policy. Digigold may review yourconduct for compliance purposes, but shall have no obligation to do so.
5.3. You acknowledge that the Services are for your personal use and agree not to publish the gold prices or descriptions of gold and/or any other information displayed on the Website (in lieu of your access to the Website) on any other medium. You shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Services.
5.4. Subject to these Terms and the Privacy Policy, Youhereby grant to Digigolda non-exclusive, worldwide, royalty-free right to (a) collect, store andtransmityourdata, in each case solely to the extent necessary to provide the Services to you, and (b) share yourdata or interact with other people, to distribute and publicly perform and display yourdata as you direct or enable through the Services.
5.5. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your data to Digigoldand to grant the rights granted to Digigold in these Terms and (ii) your data and its transfer to and use by Digigoldas authorized by you under these Terms do not violate any laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under these Terms and the Privacy Policy, Digigoldassumes no responsibility or liability for yourdata, and you shall be solely responsible for yourdata and the consequences of using, disclosing, storing, or transmitting it.
5.6. Digigoldshall not be held liable for any loss of data, technical or otherwise, information, or for particulars supplied by you, due the reasons beyond its control like corruption of data or delay or failure to perform as a result of a Force Majeure Event.