All visitors (“user”, “you”, “your”) to the Frankly Wearing website at www.franklywearing.com (“the website”) are entering a binding legal agreement on the following terms (the “agreement”) when using the website. The agreement is between the user and Tembyr Networking LLP and the use of this website indicates continued acceptance of this agreement.
Our services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Our services are not available to persons under 18 years of age.
Amendment to this agreement
We may amend the terms of this agreement from time to time, and we will let you know about these changes either by sending you an email to the email address you have registered with Frankly Wearing or by displaying information about the changes on our home page, or both. Either way, your continuing use of the website will be taken to be acceptance of the new terms.
Frankly Wearing provides a range of services which, amongst other things, enable you to publish, sell, discuss and purchase art; interact with other members; and receive the benefits of Frankly Wearing's facilitation of product fulfilment, including payment processing, customer services, third-party product manufacturing. In addition, Frankly Wearing will arrange for the delivery of the physical product to your customer.
The digital content on the website (“your content”) may be information, text, data, graphics, images, photographs, sound, video, music or any other material posted online by users. Any content that you upload into the portfolio section of your account is described as your “art”.Your art may be viewed by all users of the website once you elect to publish/sell it. You may order a physical product based on your own art or you may offer your art for sale as part of the sale of a physical product. If you or a customer decide to place an order, then Frankly Wearing (or 3rd party manufacturers) will process, manufacture and ship the physical product in the form specified by you or the customer (“the product”).
You can become a registered creator (“creator”) on the website by setting up a password-protected account. You will be required to select a username and password when registering to become a creator. You must become a creator before placing any content on the website, including writing any comments in forums or reviews. In its sole discretion, Frankly Wearing may refuse any user name that it decides is inappropriate and / or refuse any person from becoming a creator.
You are responsible for actions made on the website using your password, including any products purchased or sold and any content displayed or messages sent, even if these actions were not approved or contemplated by you. You are solely responsible for any loss caused by any use of your password by you, or any other person.
You agree that you will not disclose your password to any other person and you will not keep your password where it can be copied or used by anyone other than you. If you suspect someone else knows your password, you must change it immediately.
Putting content on Frankly Wearing
You keep the copyright in any original content you submit or upload to the website. In order to receive the website services, you grant Frankly Wearing a non-exclusive royalty-free license to use and archive the content in accordance with or as reasonably contemplated by this agreement.
When you submit or upload content on the website you represent and warrant that:
- you own all copyright in the content, or if you are not the owner, that you have permission to use the content, and that you have all of the rights required to display, reproduce and sell the content;
- the content you upload will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trademark, patent or rights of privacy or publicity;
- your use of the website will comply with all applicable law, rules and regulations;
- the content does not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
- the content does not include malicious code, including but not limited to viruses, trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information; and
- the content is not misleading and deceptive and does not offer or disseminate fraudulent goods, services, schemes, or promotions.
Frankly Wearing reserves the right to review and if in its sole discretion deemed necessary, remove any content from the website and/or cancel your account, because that content breaches your agreement with us and/or any applicable laws, or otherwise. You agree to indemnify Frankly Wearing in respect of any direct or indirect damage caused due to your breach of one or more of these warranties.
Offering your creation for sale on a physical product
Any creator may offer their art for sale on a physical product on the website by appointing Frankly Wearing to facilitate the transaction on the terms set out in the Services Agreement in Appendix A. By agreeing to the terms of this user agreement you expressly agree to the terms of the Services Agreement in Appendix A, which will apply from the date on which you offer your first art for sale on a physical product and your continued use of the website will constitute ongoing agreement to the terms therein as updated from time to time.
Purchasing a Product on Frankly Wearing
Users can purchase products on Frankly Wearing using the Paytm Payment Gateway or the Cash on Delivery mode of payment.
You do not have to be a creator to purchase a product.
The price you pay is fixed at the time of ordering.
You may not cancel an order once it has been dispatched.
It is the customer’s responsibility to ensure the product delivery address is correct.
Frankly Wearing takes no responsibility for any product a customer does not receive because of errors in the delivery address given to us.
We do not warrant, endorse, make representations about or recommend any content or art offered or provided by any member.
Paying you after your product is sold
Payment terms are explained in the Services Agreement.
You Instruct Frankly Wearing to cancel incorrect orders
You acknowledge that despite our reasonable precautions, products may be listed at an incorrect price or with incorrect information or may be unavailable. This may be due to an error or similar oversight. You acknowledge that we cannot facilitate an order where such an error exists and hereby instruct us to cancel such an order and take other action as required.
You authorize us to cancel an order if we believe that it is being made in contravention of this agreement, or in contravention of the rights of any person or any law. We may cancel an order even if it has been confirmed and the customer has been charged. We reserve this right up until the time of delivery of the product to that customer. If a cancellation of this nature occurs after the customer has been charged for the product, we will credit the customer for the amount in question.
Delivery will be facilitated pursuant to the customer's instructions by postal or courier service and will be paid for by the customer at the price indicated at the time of purchase. Frankly Wearing may charge shipping charges to the customer which may vary depending upon the size and price of the product.
If a product is delivered to a customer, whether in electronic or printed format, that is electronically or physically damaged in some way (for example, a file does not download, a framed print has cracked, or there are loose or torn pages in a book), Frankly Wearing will issue a replacement copy of the product after receiving reasonable proof of that damage.
If you receive a damaged product, then you must email Frankly Wearing customer service within 5 days of receipt to tell us about the nature of the damage and to arrange for a new product to be sent to you.
Please be aware that publishing to the website is creator-controlled and we do not screen all of the content on our website. It is the customer’s responsibility to verify the quality of the content (including but not limited to misspelled words, grammatical errors, formatting, design or overall appearance) before ordering a product. This damaged goods policy does not apply to content, only to the physical product.
You grant Frankly Wearing permission to dispose of any inventory that becomes excess as a result of refund, reprint, fraud, product sampling or promotional activities, in any manner we see fit.
Reporting inappropriate content to Frankly Wearing
Frankly Wearing may not manually screen content before it is displayed on the website so occasionally members may inadvertently or deliberately submit and display content that breaches this agreement.
Inappropriate content includes, but is not limited to, content that infringes the copyright or other intellectual property rights of any person or company, or that defames or vilifies any person, people, races, religion or religious group, is obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable. Frankly Wearing reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
Please help us by letting us know straight away about any inappropriate, or potentially inappropriate, content you see on the website.
You must ensure that your access to this website and the website service is not illegal or prohibited by laws that apply to you.
You must take your own precautions to ensure that the process that you employ for accessing this website and the website service does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage own computer system. We do not accept responsibility for any interference or damage to any computer system that arises in connection with your use of this website or any linked website.
We do not accept liability for any losses arising directly or indirectly from a failure to provide the website, corruption to or loss of data, errors or interruptions, any suspension or discontinuance of the website, or any transmissions by others in contravention of the registered members’ obligations as set out in this agreement.
You acknowledge that we may not be able to confirm the identity of other registered members or prevent them acting under false pretenses or in a manner that infringes the rights of any person.
Intellectual Property Rights and license
By submitting listings to Frankly Wearing, you grant Frankly Wearing a non-exclusive, worldwide, royalty-free, sublicense able and transferable license to use, reproduce, distribute, prepare derivative works of and display the content of such listings in connection with Frankly Wearing's (and its successors' and affiliates') services and business in facilitating the sale of your product, including without limitation for promoting and redistributing part or all of the Frankly Wearing site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Frankly Wearing site a non-exclusive license to access your content through the website, and to use, reproduce, distribute, and display such content as permitted through the functionality of the site and under this Creator Agreement. The above licenses terminate within a commercially reasonable time after you remove or delete your listings from the Frankly Wearing site. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
All intellectual property rights in this website and the Frankly wearing site (including the software and systems underlying Frankly Wearing, and text, graphics, logos, icons, sound recordings, and software) are owned by or licensed to us. Other than for the purposes of, and subject to the conditions prescribed under relevant Copyright and Trade Mark legislation throughout the world, and except as expressly authorized by this agreement, you may not in any form or by any means:
- use, adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this website; or
- commercialize any information, products or services obtained from any part of this website,
without our written permission.
If you use any of our trademarks in reference to our activities, products or services, you must include a statement attributing that trademark to us. You must not use any of our trademarks in or as the whole or part of your own trademarks; in connection with activities, products or services which are not ours; in a manner which may be confusing, misleading or deceptive; or in a manner that disparages us or our information, products or services (including this website).
This website may contain links to other websites (“linked websites”). Those links are provided for convenience only and may not remain current or be maintained.
We are not responsible for the content or privacy practices associated with linked websites.
Our links with linked websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.
We do not represent or guarantee that the Frankly Wearing website and its services, or any other website that is accessible using a hyperlink from this website will be free from errors or viruses. We do not represent or guarantee that access to the Frankly Wearing service or these websites will be uninterrupted.
You acknowledge that Frankly Wearing website and its services may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including technical difficulties with the performance or operation of our or another person’s software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures.
We do not warrant that any members’ uploads to this website will be protected against loss, or misuse or alteration by third parties. We do not warrant that all uploaded content will be available on our website. If we elect in our sole discretion to make available content on our website, we do not warrant that it will be available within a certain time frame.
We do not accept responsibility for any loss or damage, however caused (including through negligence), that you may directly or indirectly suffer in connection with your use of this website or any linked website, nor do we accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through this website.
To the extent permitted by law, any condition or warranty that would otherwise be implied into these terms and conditions is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following, which we may offer as a gesture of goodwill:
- if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again
This disclaimer set out in these terms and conditions does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.
You agree to indemnify, defend and hold us, our officers, directors, employees, agents and representatives harmless, as well as, all third parties printing, manufacturing and/or otherwise fulfilling the products you are designing via the website, their officers, directors, employees, agents and representatives harmless, from and against any and all claims, damages, losses, liabilities, costs (including reasonable legal fees) or other expenses that arise directly or indirectly out of or from:
- your breach of any clause of this agreement;
- any allegation that any materials that you submit to us or transmit to the website infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or
- your activities in connection with the website.
This indemnity will be applicable without regard to the negligence of any party, including any indemnified person.
Security of information
No data transmission over the Internet can be guaranteed as totally secure. We strive to protect such information, however, we do not warrant and cannot ensure the security of any information that you transmit to us. Accordingly, any information that you transmit to us is transmitted at your own risk.
Termination of access
Access to this website may be terminated at any time by us without notice. Our disclaimer will nevertheless survive any such termination.
We accept no liability for any failure to comply with this agreement where such failure is due to circumstances beyond our reasonable control.
If we waive any rights available to us under this agreement on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
If any of the terms of this agreement are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.
You may close your account at any time by mailing us for the same at firstname.lastname@example.org
APPENDIX A - Services Agreement
You wish to use Frankly Wearing’s services to facilitate marketing and sale of your creation on a physical product and to arrange for the manufacture of the physical product ("your creation") once an order has been made through www.franklywearing.com ("the website"). Frankly Wearing will provide these services on the terms set out in this Services Agreement. Additionally, Frankly Wearing will provide for the delivery of such products to the customer.
1.1 Frankly Wearing, acting as an independent contractor under your instructions will market to and obtain orders from customers for the purchase of your creations over the website and on instruction from you, Frankly Wearing will (or arrange for third parties to) fulfill those orders by facilitating payment for and manufacture of your creations (“Services”). Frankly Wearing will then arrange for the delivery of your creations as per the customer’s instructions.
1.2 Frankly Wearing will provide the Services pursuant to this agreement until termination in accordance with its terms.
1.3 You agree that Frankly Wearing is free to act in any capacity for any other person interested in promoting, marketing and obtaining orders from members of the public for the purchase of their arts over the website, including any art that is the same as, or similar to, your creations.
2. License and standing instructions
2.1 You grant Frankly Wearing a non-exclusive royalty-free license to use your intellectual property relating to your creations for the purpose of enabling us to carry out the Services.
2.2 You hereby instruct Frankly Wearing to facilitate the sale of your creation which includes payment, processing and arranging for manufacturing your creation (s) in respect of the orders placed by the customers via the website and Frankly Wearing will facilitate such payment, and manufacturing in accordance with reasonable business practices unless you otherwise instruct prior to the placement of that order by a customer.
3. Sale of your creations
3.1 The retail price charged to customers who purchase your creation is made up of the manufacturing fee, Frankly Wearing’s fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and Frankly Wearing’s fee are referred to collectively, and inclusive of tax, as the “base amount”), your creator margin (“your margin”), and any relevant sales tax (such as Sales Tax, GST, VAT, etc) that Frankly Wearing and / or you (as the case may be) are liable to account for to the appropriate tax authorities. Shipping charges will also be added to the retail price. When making each individual work available for sale you are able to select any percentage markup you wish, greater than or equal to zero, above the base amount but below the automated upper limit (subject to change from time to time). The commission markup selected by you on the website for your creator account is used to calculate the rupee value of your margin for each sale.
3.2 You may change the commission markup on top of the base amount at any time by changing your selection on the website. We may change the base amount at any time without specific notice to you. The retail price will not change on an individual sale after a customer has submitted an order to the website.
3.3 Frankly Wearing will send you a daily summary email to the email address you registered in your account to notify you about the orders that have taken place a day before.
3.4 You agree that Frankly Wearing makes no representation that it will be able to procure an order for your creations, whether at the retail price or at all, nor that you will obtain any benefit by entering into this Services Agreement.
3.5 All items purchased from the website may be manufactured pursuant to arrangements with third party suppliers under your instructions. This means that title and risk for loss for such items pass from you to the customer/purchaser without passing through us prior to the goods being delivered to the customer under the customer’s instructions.
4. Payment terms
4.1 You authorize Frankly Wearing to collect, hold and distribute the retail price (“sale proceeds”) from customers on the terms set out in this clause 4. Frankly Wearing may also charge the customer for the shipping which will be retained by us and not affect the amount to be distributed to you.
4.2 You authorize Frankly Wearing to deduct the base amount (which includes Frankly Wearing’s margin for facilitation services, including tax where applicable) from the sales proceeds for your products before distributing your margin (which will include tax where applicable).
4.3 You authorize Frankly Wearing to deduct 2.5% of your margin amount as the payment-gateway charge before carrying out a withdrawal.
4.4 The margin amount will be available for withdrawal once the return period of the delivered product has passed. (You can check the return period on the Return Policy page)
4.5 You may at any time request that we pay you the full amount in your account. We will endeavor to pay you this amount within 14 days of your request. A minimum balance of Rs. 300 is required to make a withdrawal request.
4.6 It is your responsibility to ensure Frankly Wearing has current details of your postal address and bank account details. Frankly Wearing will not be liable for any loss suffered by you if you provide us with incorrect details in relation to the payment method. If we are unable to pay you because you have given us incorrect details or your details are out of date, we will hold your margin for up to 12 months from the payment date. If you have not notified Frankly Wearing of any amendment to the payment method details in that time your margin proceeds will be forfeited to Frankly Wearing or donated to a charity of our choice.
5. Taxation responsibility
5.1 Each party is responsible for their own taxes associated with each transaction and will account for any taxes imposed by governments or governing authorities, and related accounting or audit requirements arising out of, as a result of, incidental to, or in connection with obligations under this Services Agreement. We recommend that you consult with your tax advisor as to the application of taxes for you, as the seller of the merchandise. This may include Sales Tax, VAT, GST and other transactional taxes.
5.2 Frankly Wearing will not collect or pay taxes on your behalf as Frankly Wearing is merely acting as an agent in facilitating the sale of your creations to the customers. As stated in clause 4.2 of this Agreement, the amounts distributed to you will be deemed to be inclusive of any taxes, if applicable. You will at all times be solely responsible for reporting and remitting any tax liabilities arising out of the sale of your products together with any potential interest or penalties that any tax authority may levy as a result of non-compliance.
5.4 For the avoidance of doubt, all tax-related reporting responsibilities by you to relevant tax authorities are entirely your responsibility.
6.1 You hereby indemnify and will keep Frankly Wearing indemnified from and against all claims, debts, accounts, expenses, costs, liens, actions and proceedings of any nature whatsoever, whether known or unknown by any person, arising from, incidental to, or by virtue of, the appointment, or any breach or non performance of your obligations under this Services Agreement or arising out of your willful act, neglect or default in the performance of such obligations.
6.2 This clause 6 will survive the termination of this Services Agreement.
7. Limitation of liability
7.1 In no case will Frankly Wearing be liable for any consequential loss or damage suffered by you arising from this Services Agreement. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.
8. Terminating this agreement
8.1 You can give notice of termination of this Services Agreement by closing your account in the method described in the User Agreement.
8.2 Frankly Wearing may give notice of termination of this Services Agreement to you in writing at any time.
8.3 After notice of termination in the manner described in either clause 8.1 or 8.2, you authorize us to complete any transactions in progress in relation to your products, which we will do on the terms of this Services Agreement. Termination of this Services Agreement will take effect once these transactions have been completed.
8.4 Upon termination of this Services Agreement by either party, Frankly Wearing will pay you any accrued member margin proceeds from your account, less a Rs. 50 administration fee.