SALES TERMS & CONDITIONS
These Sales Terms and Conditions (Sales Terms) are between EZ Smile Pty Ltd (ABN 73 616 577 407), its successors and assignees, (referred to as “we”, “us” or “our”) and you, the person, organisation or entity that purchases products from us (referred to as “you” or “your”) (collectively “the Parties”). These Sales Terms apply to all sales made by us to you. These Sales Terms are available at www.ezsmile.com.au (Site).These Sales Terms form the agreement under which we will supply products to you. Please read these Sales Terms carefully. If you have any questions, please contact us using the contact details below, before you purchase products from us.
You accept our Sales Terms by making a purchase from us. Your purchase from us indicates that you have had sufficient opportunity to access these Sales Terms, along with our Consent and Disclaimer form, and contact us, that you have read, accepted and will comply with these Sales Terms and our Consent and Disclaimer form, and that you are 18 years or older, or have the consent of a legal guardian. You must not order products from us if you are under 18 years of age or do not have the consent of a legal guardian. If you do not agree to these Sales Terms and our Consent and Disclaimer form, you should not purchase from us.
1. Pre-Approval: To be eligible to purchase our products you must complete, sign and submit to us the Consent and Disclaimer form. You agree to provide true, accurate, current and complete information on your applicable form. We have no obligation to verify the veracity, accuracy or completeness of the information you provide us. All purchases are subject to our approval based on the information you provide to us, and our approval may be withheld in our absolute discretion. Our approval will in no way operate or have the effect of increasing our responsibility or liability under, or otherwise limit any limitation of liability specified in, these Sales Terms.
2. Registration: Once we have pre-approved you, you must create an account on the Site using an email address and password (Account). You must not create and/or maintain more than one Account on the Site. Basic information is required when creating an Account. You agree to provide true, accurate, current and complete information during the registration process and to update such information to keep it true, accurate, current and complete. We have no obligation to verify the veracity, accuracy or completeness of the information you provide us. It is your responsibility to keep your Account details confidential. You are liable for all activity on your Account. You acknowledge that you will not disclose your Account details to any third party, and that you will take sole responsibility for any activities or actions under your Account, whether or not those activities or actions have been authorised by you. You must immediately notify us of any unauthorised use of your Account.
3. Products and Orders:
- (a) You may order from us as set out on the Site. We may in our absolute discretion accept or reject an order depending on factors, including whether we consider you to be an eligible candidate for the use of our products (including based on the information that you have provided us), availability of products and our ability to validate payment for the products.
- (b) It is your responsibility to check the order details, including product and pricing, before you complete your order on the Site.
- (c) We will provide you with order details when you order and pay on the Site and your payment has been validated.
- (d) A binding agreement comes into existence between you and us once we have given you an order number. Subject to clause 12, no changes to these Sales Terms will be effective unless we both agree to the changes in writing.
- (e) Please be aware that some of the products sold through the Site may not be suitable for children under 18 years of age, so please take extra care when purchasing products for children under 18 years of age.
4. Price and Payments:
- (a) You agree to pay the purchase price specified on the Site at the time that you place your order for the purchase of a product, plus any applicable insurance charges based on the delivery options selected by you. All amounts are stated in Australian dollars. All purchase prices include Australian GST (where applicable). Any insurance charges will be separately shown.
- (b) You must pay for the product by one of the methods set out on the Site. We accept payment via Stripe, credit card, and zipMoney (Australian Customers only) (as set out on the EZ SMILE pricing page on our website) or such other method advised by us from time to time on the Site. Your payment will be processed upon receipt of your order. You must not pay, or attempt to pay, for an order through any fraudulent or unlawful means. If your payment is not able to be successfully processed then your order may be cancelled.
- (c) If you make a payment by way of credit card, you warrant that the information provided to us is true, accurate and complete, that you are authorised to use the credit card to make the payment and that the payment will be honoured by the card issuer.
(d) If you elect on the Site to pay by way zipMoney the following conditions apply. zipMoney is available to Australian customers only.
- 1. Available to approved applicants only. Minimum monthly repayments are required. Paying only the minimum monthly repayment amount will not pay out the purchase within the interest free period. Any balance outstanding at the expiry of the interest free period will be charged interest at the contractual rate, currently 19.9% p.a. for new approved applicants. A one off $25 establishment fee applies for new approved applicants. A monthly account service fee of $6 (when balance owing) will apply. See your contract for details. Terms & Conditions apply and are available on application. Credit provided by zipMoney Payments Pty Limited (ABN 58 164 440 993, Australian Credit Licence Number 441878).
5. Availability and Cancellation:
- (a) All purchases made with us are subject to availability. We do our best to keep in stock most products and to keep the Site up to date with availability of products.
- (b) If there is a considerable delay in dispatching your order, or if for any reason we cannot supply a product you have ordered, we will contact you using the contact details provided by you when you placed the order. You can choose a refund, store credit or to put your order on backorder. If you choose a refund or store credit, any delivery costs you have paid for the product will be refunded to you. If you choose to put your order on backorder, we will contact you to arrange for supply/delivery once the product is available.
- (a) Location: We deliver to Australia and New Zealand via Australia Post. At this stage we do not deliver to areas that are not covered by Australia Post, if any. If you are not in a delivery area that is covered by Australia Post, please contact us to discuss delivery options.
- (b) Cost: Delivery costs are included in the cost of our products.
- (c) Timing: We will normally dispatch impression kits within 48 hours of receipt of payment in full. In all other cases it may take up to 21 days from the receipt of your payment and order to dispatch products to you, unless otherwise noted on the Site. Any delivery periods displayed on the Site are estimates only, based on the information provided by the delivery company. We will deliver the product to the place of delivery you specify when making your order.
- (d) Change: If you need to change a delivery date or the delivery address, please contact us as soon as possible to see if this is possible. If you are not available to take delivery on the agreed delivery date, you may be charged a delivery fee for each additional attempt for delivery.
- (e) Method: We may deliver the products via a range of delivery methods. All deliveries must be signed for. If neither you nor your authorised representative is at the delivery address to accept delivery you will be notified, generally by the delivery company leaving a card with contact details, so that you can arrange pickup from the post office locality specified on the card.
- (f) Title and Risk: Title in the products will not pass to you until the later of delivery (including a delivery company leaving a card with contact details so that you may arrange pickup from the post office locality specified on the card), or your payment being processed or otherwise received by us. If your payment is declined for any reason we reserve the right to refuse delivery of the products, and to reclaim the products from your possession, custody or control even if they have been delivered to you or moved from the delivery address. Risk of loss, damage or deterioration to any products will pass to you once the product is delivered to the address you provide.
7. Discount Codes and Promotions:
- (a) We may from time to time offer promotional discount codes, which may be applicable to products on the Site, and must be entered at the time of submitting your order. The conditions of use relating to any discount code will be specified at the time that it is issued.
8. Intellectual Property Rights:
- (a) "Intellectual property rights" mean all present and future rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature, whether registrable or not, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights (Intellectual Property Rights).
- (b) We own all Intellectual Property Rights in the Site, business, products and branding, as between us and you. The products contain material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the copyright which subsists in all creative and literary works incorporated into our Materials.
- (c) You must not breach our Intellectual Property Rights by, including, but not limited to, altering or modifying any of the Materials, creating derivative works from the Materials or using our Materials for commercial purposes such as on-sale to third parties.
(a) If you have any feedback or questions about our products, please contact us. If there is a dispute between the Parties in relation to these Sale Terms, the Parties agree to the following dispute resolution procedure:
- i. The complainant must tell the respondent in writing the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet (including by phone or via Skype) in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
- ii. If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the rules, time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
- (b) Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Sales Terms, by law or in equity.
- (a) If you have any feedback or questions about our products, please contact us. If there is a dispute between the Parties in relation to these Sale Terms, the Parties agree to the following dispute resolution procedure:
10. Consumer Law, Return, Refund and Exchange Policy:
- (a) ACL: Certain legislation including the Australian Consumer Law (ACL) set out in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of products by us to you, which cannot be excluded, restricted or modified (Statutory Rights).
- (b) Goods & Services: If you are a consumer as defined in the ACL, the following notice applies to you: "Our goods and services come with warranties and guarantees that cannot be excluded under the Australian Consumer Law (Consumer Guarantees). You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. You are also entitled to have services remedied if they are not rendered with due care and skill or they are not fit for purpose and the failure does not amount to a major failure."
- (c) Nothing in these Sales Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for goods and related services provided to a person or entity defined as a "consumer" under the ACL is governed solely by the ACL and these Sales Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights in relation to the goods and related services.
- (d) Seller: Except for your Statutory Rights, all goods, services, material and work is provided to you without warranties of any kind, either express or implied, and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
- (e) Repair, replacement or a refund: If you wish to seek repair, resupply, replacement or a refund for a faulty product, please contact us and we will explain the requirements to you. This may include you: (i) providing proof of purchase, (ii) providing evidence of fault to us, and (iii) returning any faulty products to us. Please note that any discomfort, swelling, sensitivity, numbness, sore jaw muscles or succumbing to an allergic reaction to materials used in our products may not, in itself, be evidence of product fault.
- (f) Refund: If you are entitled to a refund, we will only give you the refund once evidence of fault is received and confirmed by us. Any refund we make will be by the same payment method used to purchase the product.
(g) Satisfaction guarantee: Our products come with a 90-day satisfaction guarantee. If you have purchased a product from us and are not 100% satisfied that the product is working as prescribed, simply:
- i. write to us at email@example.com within 90 days of purchase and request a refund;
- ii. supply proof of purchase; and
- iii. return all aligners (including used aligners) to us, at your own cost, in the original product packaging.
All products are to be returned to EZ SMILE Pty Ltd, 19/14 Jubilee Avenue, Warriewood NSW 2102. In returning products to us, please use a trackable carrier. We will review your refund request promptly and will issue you with a full refund using the same payment method used to make the purchase. Please note, this satisfaction guarantee does not apply to products that have been: (i) used other than in accordance with any use instructions supplied or made available by us, (ii) mishandled, (iii) improperly stored, (iii) damaged (by being subjected to heat or otherwise), (iv) modified, or (v) provided to you on the basis that you provided untrue, inaccurate or incomplete information to us.
- (h) Packaging: You must adequately package any product you are returning to us to ensure that it is not damaged during return delivery.
- (i) Duty of care: You have a duty of care for the product while it is in your possession. If you damage products, then subsequently return the products, you may be liable to pay to repair the product to its original condition. In these circumstances, where a repair is not economically viable, no refund will be made.
11. Limitation of Liability and Disclaimers:
(a) Notwithstanding any other provision in these Sales Terms to the contrary, and to the maximum extent permitted by law, you acknowledge and agree that:
- i. you are solely responsible for determining the suitability of any of our products or the information provided to you on our Site or otherwise, and your use of those products or information is at your own risk;
- ii. you are aware of the inherent risks of injury or ill health resulting from the use of our products and from undertaking dental treatment generally, and you release us against any liability, claim, demand, and proceeding arising directly or indirectly from your use of our products; and
- iii. we take no responsibility for, and will not be liable for the products causing you any adverse effect of any kind, including those set out in our Consent and Disclaimer form.
(b) Notwithstanding any other provision in these Sales Terms to the contrary, and to the maximum extent permitted by law, we exclude all conditions and warranties, except for your Statutory Rights including but not limited to:
- i. we expressly disclaim any implied or express guarantees, representations or conditions of any kind, which are not stated in these Sales Terms;
- ii. we take no responsibility for, and will not be liable for the Site or the products being unavailable; and
- iii. we will not be liable for any loss, damage, injury, death, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise, suffered by you or claims made against you, arising out of or in connection with the Site, inability to access or use the Site, the products, the late supply of products, or these Sales Terms, even if we were expressly advised of the likelihood of such loss or damage.
- (c) To the extent permitted by law, our total liability arising out of or in connection with the products or these Sales Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total price paid by you for the purchase of products under these Sales Terms.
- (d) This clause will survive termination of these Sales Terms.
- (a) Notwithstanding any other provision in these Sales Terms to the contrary, and to the maximum extent permitted by law, you acknowledge and agree that:
12. Amendment: Our pricing structure, payment methods and these Sales Terms may be amended from time to time in our discretion, and the changes will apply to you for products provided to you after the date of the change and in any event no earlier than the date that the amended or new Sales Terms are provided to you. After a pricing change, you have the choice to continue using our products or to cease using our products without penalty.
13. Indemnity: You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your breach of these Sales Terms. You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our products including, but not limited to, disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. The obligations under this clause will survive termination of these Sales Terms.
- (a) Accuracy: While we endeavour to keep the information and material up to date and correct, it is provided by us to you in good faith and on an "as is" basis, and we accept no responsibility for, and make no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, material, images or related graphics contained on the Site for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
(b) Termination: We reserve the right to refuse supply of the products ordered by you, terminate your account, terminate our contract with you, and remove or edit content on the Site at our sole discretion, without incurring any liability to you. We may terminate your account and our contract with you, in our sole discretion, without incurring any liability to you, if:
- i. you commit a non-remediable breach of these Sales Terms;
- ii. you commit a remediable breach of these Sales Terms and do not remedy the breach within 14 days after receiving notice of the breach.
- (c) GST: If and when applicable, GST payable on our products will be set out in our invoices. By accepting these Sales Terms, you agree to pay us an amount equivalent to the GST imposed on these charges.
- (d) Relationship of Parties: These Sales Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
- (e) Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Sales Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days' notice in writing.
- (f) Notice: Any notice in connection with these Sales Terms will be deemed to have been duly given when made in writing and delivered or sent by email, facsimile or post to the party to whom such notice is intended to be given or to such other address, email address or facsimile number as may from time to time be notified in writing to the other party.
- (g) Waiver: Any failure by a party to insist upon strict performance by the other of any provision in these Sales Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by us of any of these Sales Terms shall be effective unless we expressly state it is a waiver and we communicate to you in writing.
- (h) Assignment: You must not assign any rights and obligations under these Sales Terms, whether in whole or in part, without our prior written consent.
- (i) Severability: If any of these Sales Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- (j) Jurisdiction and Applicable Law: Your use of the Site and any dispute arising out of your use of it is subject to the laws of New South Wales and the Commonwealth of Australia. These Sales Terms are governed by the laws of New South Wales and the Commonwealth of Australia and subject to the exclusive jurisdiction of the courts operating in New South Wales. The Site may be accessed throughout Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Site.
- (k) Entire Agreement: These Sales Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.