Smile Right Subscription Agreement
These Subscription Services Terms and Conditions of Use (the “Subscription Agreement") apply to the Smile Right web site located at www.smileright.com.au, and all associated sites linked to www.smileright.com.au by Smile Right, its subsidiaries and affiliates (collectively, the “Site"). Within this Site are a number of services provided by online applications, such as, but not limited to, Patient Communication, Marketing and Patient Finance (collectively, the “Services”). The Site and Services are the property of Smile Right Pty Ltd ACN 601 445 041 (“Smile Right") and its licensors.
Please read the Subscription Agreement carefully. By using, browsing and/or reading the Site, this signifies that you have read, understood and agree to be bound by the Subscription Agreement. If you are using, browsing and/or reading the Site on behalf of an entity, such as your employer, you acknowledge that your doing so binds that entity as well. If you do not agree with the Subscription Agreement, you must cease usage of the Site immediately.
Subscription to use the Services
In order to access the Services, you must first purchase a subscription through the Site (the 'Subscription') and pay the applicable fee for the selected Subscription (the 'Subscription Fee'). In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use. Once you have purchased the Subscription, you will then be required to register for an account through the Site before you can access the Services (the 'Account').As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details. We may collect other personal information about you for the purpose of the arrangements contemplated by this agreement. You warrant that any information you give to Smile Right in the course of completing the registration process will always be accurate, correct and up to date. Once you have completed the registration process and if Smile Right has accepted your registration, you will be a registered member of the Site ('Member'). As a Member you will be granted immediate access to the Services from the time you have completed the registration process until the subscription period expires (the 'Subscription Period'), subject to these Subscription Services. You may not use the Services and may not accept the Subscription Services if you are not of legal age to form a binding contract with Smile Right or you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
Obligations as a Member
As a Member, you agree to comply and will use the Services only for purposes that are permitted by the Subscription Agreement, any applicable law or regulation or any generally accepted practices or guidelines in the relevant jurisdictions. You have the sole responsibility for protecting the confidentiality of your password and/or email address. You are responsible for all use of your password by any other person and such use may result in the immediate cancellation of the Services. Any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Smile Right of any unauthorised use of your password or email address or any breach of security of which you have become aware. Your access and use of the Site is limited, non-transferable and allows for the sole use of the Site by you for the purposes of Smile Right providing the Services. You will not use the Services or the Site in connection with any commercial endeavours except for your internal business purposes in the operation of your business, without the prior consent of Smile Right. You will not use the Services or Site for any illegal and/or unauthorised use which includes collecting email addresses of Members or other persons by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Site. You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Site without notice and may result in termination of the Services and you acknowledge and agree that any automated use of the Site or its Services is prohibited.
You must sign a direct debit authority in a form specified by us authorising us to debit your account with any money due to us under this document and ensure that all debits made by us are honoured. We can issue tax invoices in respect of the Subscription Fee. You acknowledge that you are registered for GST when you enter into this agreement and that you will notify us if you cease to be registered or if you cease to satisfy any of the requirements of the determination (RCTI 2000/49). We must not issue a document that would otherwise be a recipient created tax invoice on or after the date when you ceased to be registered or you failed to comply with any of the requirements of the determination.You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or the Subscription Fee is unpaid by you for any other reason, then you are liable for any costs, including banking fees and processing and handling charges, associated with the Subscription Fee. Our certificate as to an amount payable in connection with a tax invoice issued under this agreement is conclusive and binding on you in the absence of manifest error. You agree and acknowledge that Smile Right can vary the Subscription Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period. You acknowledge that if you fail to pay any Subscription Fees due, Smile Right may any or all of the following - suspend the supply of its Services to you, and charge interest at the annual rate of 8% above the prevailing base lending rate quoted by the Commonwealth Bank. Interest will accrue daily from the date payment became overdue, until the undisputed amounts are paid in full.
Billing and plan modifications
The account holder will receive a receipt upon each approved payment of the Subscription Fee. You therefore authorise Smile Right to direct debit your account at the conclusion of the billing period. Billing will occur on a periodic basis until your Subscription to our Services ceases, and you further agree to pay any Subscription Fees so incurred. You agree to promptly update Smile Right with any changes to your account (including but not limited to your billing address, bank account or credit card verification information) that may pertain to you. If you elect to upgrade your Subscription (deemed a “Subscription Upgrade”), any incremental Subscription Fee associated with said Subscription Upgrade will be charged pro rata over the remaining time of your Subscription Period. It will be charged to your account and due and payable at the end of your Subscription Period upon carrying out your Subscription Upgrade. In all future Subscription Periods, your Subscription Fees will reflect these Subscription Upgrades. Refunds or credits for Subscription Fees or other fees or payments for a Subscription Upgrade will not be provided if you choose to downgrade your Subscription. Downgrading your Subscription may result in loss of content, features, or capacity of the Services; Smile Right does not accept liability for this loss.
Smile Right will only provide you with a refund of the Subscription Fee in the event Smile Right is unable to continue to provide the Services or if you lawfully terminate the contract evidenced by the Subscription Agreement. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Member.
You acting as trustee
If you enter into this agreement as trustee of a trust, you and your successors as trustee of the trust will be liable under this agreement in their own right and as trustee of the trust. Nothing releases you from any liability in your personal capacity. You warrant that at the date of this agreement all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by you as trustee and have not been varied or revoked and the trust is a valid and subsisting trust. You are the sole trustee of the trust and have full and unfettered power under the Subscription Services of the deed establishing the trust to enter into and be bound by this agreement on behalf of the trust and that this agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust. There are no restriction on your right of indemnity out of or lien over the trust’s assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.
Nothing in the Subscription Services limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded (together, 'Non-Excludable Guarantees'). Subject to this clause, and with the exception of any Non-Excludable Guarantees, all Subscription Services, guarantees, warranties, representations or conditions which are not expressly stated in the Subscription Services are excluded. To the extent permitted by law, and subject to your rights in relation to a breach of any Non-Excludable Guarantees, Smile Right excludes all liability for loss or damage you might suffer as a result of any of the following - failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records. The accuracy, suitability or currency of any information on the Site, the Services, or any of its Services related products (including third party material and advertisements on the Site). The costs incurred as a result of you using the Site, the Services or any of the products of Smile Right; and the Services or operation in respect to links which are provided for your convenience.
Limitation of liability
Smile Right's total liability for any and all claims arising out of or in connection with the Services or these Subscription Services, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, is limited to the resupply of the Services to you. To the extent permitted by law, You expressly understand and agree that Smile Right and its affiliates, employees, agents, contributors and licensors shall not be liable to you for any indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability, or for any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
Termination of Contract
The Subscription Services will continue to apply until terminated by either you or by Smile Right as set out below. Without limiting these Subscription Services, you may terminate the Subscription Services by providing Smile Right with 30 days' notice of your intention to terminate and closing your Account. Without prejudicing its other rights under the Subscription Services or at law, Smile Right may , suspend your access to the Site or the Services, cancel your membership and/or terminate the Subscription Services with immediate effect if you have breached any provision of the Subscription Services and do not remedy that breach within 30 days after Smile Right has informed you to remedy the breach or Smile Right is required to do so by law or the provision of the Services to you by Smile Right is, in the reasonable opinion of Smile Right, no longer lawful, or your use of the Services is unlawful, or you are bankrupt or insolvent, or appear likely to become bankrupt or insolvent, or in Smile Right’s reasonable opinion, you experience a materially adverse change in your credit standing.
If the performance of Smile Right's obligations of service is prevented, restricted or affected by Force Majeure for more than 60 days, either party may terminate these Subscription Services and/or the Services without penalty. Force Majeure means a circumstance beyond the reasonable control of a party which results in that party being unable to observe or perform on time an obligation under the Subscription Services or the Services. Such circumstances include acts of God, acts of war, acts of public enemies, civil commotion, malicious damage, sabotage and strikes.
You must indemnify and keep indemnified Smile Right, its affiliates, employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) (collectively, 'Loss') incurred, suffered or arising out of or in connection with your content or your breach of the Subscription Services, provided that you will have no liability under this indemnity to the extent that Smile Right caused or contributed to the Loss.
Governing Law and Jurisdiction
In the event of any dispute arising out of or in relation to the Site, you agree that the exclusive venue for resolving any dispute shall be in the courts of Western Australia, Australia. The Subscription Services are governed by the laws of Western Australia, Australia. The Subscription Services shall be binding to the benefit of the parties hereto and their successors and assigns.
Independent Legal Advice
Both parties confirm and declare that the provisions of the Subscription Services are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Subscription Services are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If a provision in the Subscription Services is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from the Subscription Services for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of the Subscription Services.
Smile Right grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to use the Site, pursuant to the Subscription Agreement, to copy and store the Site and the material contained in the Site in your device's cache memory; and print pages from the Site for your own personal and non-commercial use. Smile Right does not grant you any other rights whatsoever in relation to the Site or the Services. All other rights are expressly reserved by Smile Right. As between Smile Right and you, you own the data and information you upload to the Site or provide to Smile Right in the course of using the Site or the Services including patient data (collectively, 'Customer Data’) You grant Smile Right a worldwide, non-exclusive, royalty-free licence to use the Customer Data for the purpose of performing the Services and operating the Site. Smile Right will delete Customer Data when the Subscription Agreement expires or is terminated. You may not, without the prior written permission of Smile Right and the permission of any other relevant rights owners, broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by the Subscription Agreement. This prohibition does not extend to materials on the Site which are freely available for re-use or are in the public domain.