End User Licence Agreement (EULA)

End User Licence Agreement (EULA)
Dated: 1 June 2023

These website terms and conditions apply to use of, and access to, The Always Website (referred to as the Website in this EULA).

If you do not agree to these terms and conditions you must not use or access any page, application, or resource accessible through the Website, including any User Account.

By using or accessing any page, application, or resource through the Website, you accept the following terms and conditions and enter into an agreement with Glow Solutions Pty Ltd t/a The Always ABN 94 659 218 710 (“EULA“).

This document must be read in conjunction with our Privacy Policy, which is incorporated by reference and is available at https://thealways.co/privacy.

This document must be read in conduction with our other Policies, which are incorporated by reference and are available at https://thealways.co/help.

Notice: The Always is not a professional dental practice, does not provide dentistry services, and does not manufacture any goods. We are a retailer of the products described on the Website only.

Definitions and interpretation

Capitalised terms in this document have special meanings, which are defined in the Glossary at the end of this document, or in other places in the document as noted in the Glossary.

A reference to “Services” in this EULA includes a reference to “Products” as the case requires.

Provision of Services

For the duration of, and subject to these Terms and Conditions:

we will provide the Website in accordance with this EULA as varied by us and agreed by you from time to time; and

we will provide you with a User Account, which you will be able to access and administer.

As a Subscriber, our Services include the following features and benefits that are available through the Website:

a categorised list of Products available through the Website;

a convenient and transparent process to order Products;

convenient monthly Subscription payments to access Products each month;

our quality assurance program;

a dispute resolution process if you are not satisfied with the Products you have received.

Service limitations

The Website is hosted by a third party service provider and we do not guarantee that your access to it will be continuous or error free. If you have difficulties accessing the Website, please check the status page here: https://wpenginestatus.com/.

The Payment Processor is a third party and we do not guarantee that the payment processing service will be persistently available, continuous or error free. If you have difficulties making a payment, please check the status page here: https://status.stripe.com/

We do not provide any specific support services under this EULA, however a range of general support information, tutorials, and FAQs are available through the Website. If you have any queries then please contact us at support@thealways.co and we will try to assist you as soon as we can. Please review the contact us page for other ways to communicate with us: https://thealways.co/contact-us.

We are not responsible for any defects, delays or interuptions to the Services caused by the delays, action or inaction of any third parties; and without limitation such as hardware suppliers or installers, internet service providers, telecomuunications companies or service providers, couriers or transport providers, or Force Majeure Events.

Term

This EULA begins upon your acceptance of the terms and conditions of this EULA and continues until the expiry of the first Billing Period (“Initial Term“). Upon expiry of the Initial Term, or the then current Renewal Term, the EULA will automatically renew for the next Billing Period (“Renewal Term“). A User may terminate this EULA at any time after expiry of the Initial Term, and the EULA will terminate at the end of the then current Renewal Term (please refer to clause 20 for further details).

You accept the terms and conditions of this EULA upon the earliest occurrence of any one of the following events:

you accessing any page, application or resource related to the Website;

you sign up for a User Account or a Subscription and you check the checkbox that indicates that you agree to The Always’ Terms and Conditions;

you check any other checkbox that indicates that you agree to these Terms and Conditions, when prompted by us when you are using, or imminently about to use, any feature of the Website;

you logging into the Website using your User Account credentials.

To the extent that we vary or add new terms and conditions in accordance with clause 5.1, then you accept such variation or additional terms and conditions upon the earliest occurrence of any of the events listed in clause 4.2(a) through 4.2(d), after we notify you of such variation or addition.

General conditions of use

We may vary these terms and conditions or impose new terms and conditions on your use of the Services or the Website at any time, by a notice published on your User Account or on the Website, or otherwise in accordance with your User Account preferences.

We may add features or update the Services from time to time. You may be required to agree to additional terms or other requirements in order to use such additional features or Services.

Nothing in this clause 5 or clauses 6, and 7 is to be read as limiting our rights in administering the Website or our social media channels, or methods that we may use to maintain our social media channels, control the features available to you, or our provision of Services to you through the Website.

You must comply with all policies that we publish from time to time. However, a policy that we publish does not create a contractual right that you may enforce against us in any circumstances. All our policies will be published by us from time to time and can be accessed at https://thealways.co/help.

User obligations (all Users)

As a User, you have various obligations. Each of the following applies to each User including Subscribers and SPCs.

Positive obligations

If an individual, you must be at least 18 years of age and not being the subject of any legal incapacity;

If a corporation, you must be validly registered with the relevant regulator and not insolvent, imminently insolvent, or under the control of an external manager, such as an administrator, liquidator, or receiver;

You warrant that all information that you provide to us is true, accurate, and complete.

You hold us harmless for any damage or loss you suffer for breach of your warranties under clause 6.4.

You must indemnify us against all losses, damages, or other claims made against us for your breach of your warranties under clause 6.4.

You must notify us if you believe that your User Account has been accessed without your authority.

You must take reasonable measures to prevent any unauthorised person from accessing the Website, your User Account, or any other Services you obtain from us using your User Account credentials. You are responsible for any damage caused or fees incurred by any such person.

You must allow us to make changes to your User Account or Content that we deem necessary.

Negative obligations

You must not use your User Account, Electronic Communications with us, or the Website to upload, transmit, communicate, or record information about any other person, unless you have written authority to do so. We may ask you to provide evidence of such authority, and upon such request, you must deliver up that evidence within 2 Business Days.

You must not upload or publish any Content to your User Account or send any Electronic Communication to us that is misleading, unlawful, unsuitable for general viewing or consumption, obscene, defamatory, in breach of any advertising standards, or in breach of any person”s privacy or other human rights. Without limiting this clause 6.11, this includes doing any such thing on any of our social media channels.

You must not use your User Account to mislead or deceive any other person, including us.

You must not upload any Sensitive Information to the Website, whether by use of a form, or through any other Electronic Communication direct to us.

You must not:

reverse engineer, reverse assemble or reverse compile the Website or any part of it;

combine or incorporate the Website in any other program or system without our prior consent in writing;

copy the Website, or any Content contained on it belonging to a person other than you, in whole or in part.

Conditions of registration for Subscribers

As a Subscriber your registration for a User Account and use of the Website, is conditional on you at all times:

being capable of entering into binding contracts;

not contravening any laws by entering into an agreement with us;

providing us with, and keeping up to date, all required information;

providing us with all reasonable assistance to deliver our Services to you; and

complying with these Terms and Conditions and all of your obligations under this EULA;

paying the amounts owing to us for your Subscription in advance; and

authorising us to charge you our Fees in relation to your Subscription.

Subscriptions

Changes

You may make changes to your Subscription at any time prior to the last day of each Billing Period, and such changes will take effect from the start of the next Renewal Term.

Payments

If you sign up for a Subscription with an associated Subscription Fee, you must pay the relevant amount monthly in advance. You agree that we may deduct the Subscription Fee from the Credit Card, Debit Card, bank account, or other method of payment that applies in the circumstances, each month in accordance with this clause 8 for the duration of your Subscription. We may vary the Subscription Fee in accordance with clause 9.

Billing

Subscription order and payment processing will occur on the first day of each Billing Period. Please refer to our policies and FAQ for details.

Dispatch of orders

Orders will generally be dispatched within 2 Business Days of being processed and clearance of payment. We are not responsible for carriage of your order or the time it takes to be delivered, please refer to the FAQ for likely timeframes.

Inclusions

Each Subscription includes delivery of the number of Products that you ordered when signing up, or as varied from time to time by you.

Products

The prices payable by you are contained in our Pricing Schedule. We may change the Pricing Schedule at any time. If the Pricing Schedule changes, then the Fees payable in relation to your Subscription will change accordingly.

If we offer discounts on any Products, then we may make such discounts subject to additional terms and conditions. To the extent that you do not comply with those additional terms and conditions, then we may not apply the relevant discount. We reserve the right to process additional charges to your chosen payment method if after receiving a discount, your actions cause you to no longer comply with the relevant terms and conditions. Without limiting the scope of this clause 9.2 this includes returning goods to us where ordering a certain quantity of goods entitles you to a discount.

The Products that we sell are subject to supply agreements with third parties. Availability of products from us are not to be interpreted as, and are not, an endorsement or a recommendation of a product for any particular purpose. You must determine the suitability of any Products for your own purposes.

We may substitute one brand’s Products or another of equivalent size, description, and material without notice to you.

If any of the Products that you order will no longer be available from us, we will notify you and either propose a materially similar alternative, or seek your approval to change your order, and any affected future orders.

Our suppliers may from time to time change the specifications, description, or standards to which their Products comply, and we have no control over such third party actions, and our obligation to you is limited to notifying you of such changes if, and when we are notified of such changes by our suppliers.

Information on our website about any Products is derived from information from our suppliers. To the extent that such information is incorrect, or incomplete, our obligation is limited to correcting such information, unless otherwise required by law. Any technical information that we provide will be current at the document date, or as otherwise specified in the relevant document. If technical specifications of any Product is important to your use case, then we strongly recommend that you obtain the most current technical information directly from the manufacturer of the relevant Products, and take steps to confirm the ongoing specifications and suitability of such Products.

Reversed transactions

If the Payment Processor reverses a Subscription Fee transaction conducted on the Website, then you remain liable to pay the Subscription Fee. You must also reimburse us for any additional fees and charges incurred by us relating to the reversal of any such transaction.

Any order or delivery related, or subsequent to a reversed transaction will not be processed until payment has been received by us for all amounts contemplated by clause 10.1 above.

Right to subcontract

We may appoint employees, sub-contractors, or agents to provide some or all of the Services; and such entities are bound by the same obligations as us. It is our responsibility to ensure such entities comply with this Agreement.

Payment processing

We do not receive or store any credit card information. All credit card information is processed securely by the Payment Processor.

Any payment made using the Payment Processor will be subject to their terms and conditions of service; and, you are responsible for complying with all such terms and conditions.

Reporting abuse of the Website

If you believe that another User, is abusing the Website, or is breaching their obligations under these Terms and Conditions, then you may report that User by email to support@thealways.co.

Intellectual property

Content and Third Party Intellectual Property

You (or where applicable, the third party owner) retain ownership of all Content you upload to your User Account and such rights are not assigned or transferred to us under this EULA.

You grant us a perpetual, irrevocable, royalty-free licence to use, copy, modify or adapt your Content as reasonably necessary to perform our rights and obligations under this EULA, including the right to grant sub-licences where reasonably necessary.

You warrant that you have full right, title and interest, or the legal right and authority, to grant the licence in clause 14.2, and that our use or modification of the Content in accordance with this EULA will not infringe upon any third party Intellectual Property Rights.

Website

We own, or are licensed to use, all components of the Website.

Subject to your continued compliance with the Terms and Conditions of this EULA, for the duration of this EULA we grant you a licence to use, enjoy, and exploit the Website for your purposes.

Privacy

We may use your contact details to send you promotional information about our new services and offers from us or our affiliates, or to notify you about important changes to the Website, subject to our Privacy Policy which is incorporated by reference.

Our Privacy Policy can be accessed at this link: https://thealways.co/privacy.

We may change the terms of the Privacy Policy from time to time on the same basis as this EULA. If you do not agree with the changes that we make to the Privacy Policy you may end this EULA in accordance with clause 20 of this EULA. In which case, the provisions of the Privacy Policy in force at the time of your written notice will continue to apply until this EULA is terminated; and will continue to apply to any information that we hold about you. For clarity, from the time that this EULA is terminated under this clause, we may at our discretion delete any information that we hold about you, unless otherwise required by law.

Third party services

The Website has functionality that is provided by third parties, and you may need to agree to certain terms and conditions with relevant third parties to use their functionality. This includes, but is not limited to you selecting a courier, or other common carrier for the delivery of your goods.

If you do not wish to agree to a third party’s terms, or do not wish to use their services as integrated into the Website, then your only option is to discontinue using the Website and our Services.

We do not control and have no ability to change the terms and conditions that third parties impose on their services, and we are not responsible for any third party’s privacy or information practices, and you must satisfy yourself of the suitability of these third party’s services for your particular circumstances.

Complaints

If you have a complaint about our Services, the complaint may be submitted by email sent to Feedback@thealways.co.

We will consider the circumstances surrounding the complaint and will notify the complainant of the remedy we deem appropriate in the circumstances. Upon receipt of our notice, the complainant may accept the proposed remedy, or raise a dispute.

Dispute resolution

As a User if you are dissatisfied with our proposed remedy to your complaint then you may submit a “Dispute Resolution Request”.

We may either seek to remedy the dispute by negotiation with you, or the dispute may be referred to a mediator by you or us ” please refer to the mediation clause for details.

Mediation

You may not initiate court proceedings against us unless you have complied with this clause 19.

If a dispute cannot be resolved by negotiation or conciliation directly between the disputants, then it must be referred to mediation.

If a dispute is referred to mediation, then each party will bear the costs of the mediation equally and must do all things reasonably necessary to attend and participate in the mediation. A party may not appoint a legal practitioner to represent them at a mediation but may have such a person in attendance solely to advise them.

The parties may agree on a mediator, but in absence of agreement, either party may request that the Law Society of Queensland nominate a mediator for the purposes of this clause 19.

If the dispute is not resolved within 30 days of the appointment of the mediator, then the bar to proceedings in clause 19.1 above ceases to have effect for any party that has fulfilled their obligations under clauses 19.2 and 19.3.

Suspension and Termination

Suspension

We may conduct scheduled or mission critical maintenance of the Website during which time the Services may be interrupted.

We may suspend the Services and disable access to your User Account at any time and give you a written notice of default if:

you do not make any payment when due, or any payment is dishonoured or subject to chargeback; or

we have reason to suspect illegal or unethical activity in relation to your User Account, data, or Content; or

in our reasonable opinion your Content, conduct, data, network, software or equipment may cause, or may have caused, damage to any person or property; or

you do not comply with any of the Terms and Conditions contained within this EULA, including any of your obligations.

If we suspend our Services to you, we may notify any Payment Processor in this regard, and you authorise us to receive any information from the Payment Processor about the status of your account with them, if any, or use of their services in relation to the Website.

Termination for default

We may terminate this EULA immediately by written notice if:

you publicly criticise, ridicule, or take any other action that may adversely affect the reputation of The Always, the Website, or any other User;

you fail to remedy an Event of Default despite receiving 7 days written notice of default from us;

you are guilty of dishonesty, serious misconduct or serious neglect of duty in relation to another User;

you act unlawfully in relation to your User Account or the Website, or you cause, aid, or abet another person to do so; or

you experience an Insolvency Event.

If we terminate this EULA under clause 20.4, we may notify any Payment Processor in this regard, and you authorise us to receive any information from the Payment Processor about the status of your account with them, if any, or use of their services in relation to the Website.

Termination for convenience – Subscribers

You may terminate your subscription in accordance with clause 4, by logging into your User Account and cancelling your Subscription.

Termination by The Always

We may terminate this EULA at any time by written notice, and such termination will take effect immediately upon the latest of the following events:

the expiry of the current Billing Period, for which you have already paid, if any; or

48 hours after sending the notice.

Consequences of termination

Upon termination of this EULA for any reason, in addition to any other rights or remedies we may have:

we may immediately disable your access to the Website and take your User Account offline;

your licence to use the Website immediately ends;

we may, but need not, keep all data and Content uploaded by you to the Website for our records;

we may destroy any data and Content uploaded by you to the Website;

we may continue to send you information about our Services, and other marketing information; and

a Party not in default may pursue any other rights or remedies available at law against a defaulting Party subject to clauses 19 and 22.

Indemnity & limitation of liability

Indemnity

You release and indemnify, and agree to keep Glow Solutions Pty Ltd indemnified against any action, proceeding, claim, demand, or prosecution relating to:

any breach of your obligations under this EULA;

any breach of your warranties under this EULA; and

any loss or damage to persons or property (including data), caused by you, and related to your use of the Website or our Services.

Limitation of liability

To the maximum extent permitted by law all Services are provided under this EULA on an “as is” basis and all warranties that might otherwise be implied by law or statute are excluded. This clause 22.2 is subject to clause 22.6,

You agree to release and hold Glow Solutions Pty Ltd harmless against any action, proceeding, claim, demand or prosecution relating to any downtime, interruption, loss of data, or consequential loss of any kind whatsoever, whether directly or indirectly arising in connection with the Services. This clause 22.3 is subject to clause 22.6.

Any liability of Glow Solutions Pty Ltd for any loss or damage, however caused (including, without limitation, by the negligence of Glow Solutions Pty Ltd), suffered by you in connection with this EULA is limited to the Fees received by The Always from you in relation to the Services.

Except as contemplated by clause 22.6, nothing in this EULA is intended to limit any rights you have under the Competition and Consumer Act 2010 (Cth).

If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by Glow Solutions Pty Ltd in connection with this EULA, and Glow Solutions Pty Ltd”s liability for failing to comply with that guarantee cannot be excluded but may be limited, then despite any relevant provision of this EULA to the contrary Glow Solutions Pty Ltd”s liability for such failure is limited to (at Glow Solutions Pty Ltd”s election):

in the case of a supply of goods, Glow Solutions Pty Ltd replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or

in the case of a supply of services, Glow Solutions Pty Ltd supplying the services again or paying the cost of having the services supplied again.

In this clause 22 a reference to consequential losses means any indirect, special, economic, or consequential loss including loss of revenue, profits, goodwill, bargain or opportunities that you suffer in any way, even if we knew or should have known about the possibility of such loss.

General

Records

Our records are prima facie evidence of any fact, matter, or circumstance and will be deemed conclusive unless you can produce conclusive evidence to the contrary.

Costs

You are responsible for all duties, charges and legal fees (on a solicitor and own client basis) incurred in enforcing this EULA.

Currency and Taxation

Unless otherwise stated, all monetary amounts are expressed in Australian dollars exclusive of GST.

Enduring Clauses

The Parties” obligations under Clauses 3, 14, 15, 21, 22 and this clause 23.4 shall survive the termination of this EULA for whatever reason.

Entire agreement

This EULA contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the Services.

Force majeure

Neither party is liable for any delay or failure to perform its obligations under this EULA to the extent that such failure is caused by a Force Majeure Event.

Jurisdiction

The laws of the State of Queensland, Australia apply to this EULA and the Parties submit to the courts of that jurisdiction.

Relationship between the Parties

Nothing in this EULA constitutes a partnership or contract of employment. It is the express intention of the parties to deny any such relationship.

Representatives, Successors and Assigns

You must not assign or novate this EULA in whole or in part.

We may assign or novate this EULA in whole or part at our sole discretion.

Severability

If any provision of this EULA is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.

Waiver

Any delay or failure to enforce any rights in relation to a breach by the other Party will not be construed as a waiver of those rights.

Glossary

In this EULA the following defined terms in this clause 24 have the corresponding meaning, unless the context requires otherwise.

“The Always” means:

– Glow Solutions Pty Ltd t/a The Always ABN 94 659 218 710.

“Billing Period” means:

– Calendar monthly, beginning on the day of the month that you signed up for your Subscription, or alternatively processed payment for your first order (if later).

“Business Hours” means:

– the hours between 8 am and 6pm on weekdays, except on any gazetted public holiday in Brisbane, Australia.

“Content” means:

– any media, images, text, content, software, including user generated content and content uploaded by a User, as the case requires, or other files relating to a User on the Website, but excluding any part of the Website, or related templates, media, modules, or data.

“Electronic Communication” means:

– Any means of communicating electronically, which includes without limitation:

Email;

Facsimile;

Any web chat service;

Any social media messaging or commenting service;

File sharing or document transmittal service;

Any video conferencing service;

Any other form of communication which is conducted using any internet connection, or other means of transmitting data, or streaming media.

“Electronic Transaction” means:

– an electronic transaction conducted through the Website, including without limitation a payment made through any of the following methods, as provided for by the Payment Processor:

Credit Card;

Debit Card; or

Prepaid payment card;

Another payment method as agreed by us.

“Event of Default” means:

– any one or combination of the following:

You breach the terms of this EULA, and you do not remedy such breach within 7 days of us sending you a notice requiring you to remedy the breach;

You do not fulfil any of your obligations to us under this EULA;

You commit a criminal offence;

You act contrary to law, or fail to act in compliance with the law;

You (a corporation) are insolvent or imminently insolvent;

You (an individual) are bankrupt, or commit an act of bankruptcy;

“Fee” means:

– any fee payable to us in relation to use of the Website or our Services.

“Force Majeure Event” means:

– any natural disaster, fire, flood, war, riot, terrorism, vandalism, government sanction, industrial action, pandemic or event caused by, or relating to the threat of communicable disease or other significant event outside the reasonable control of a Party.

“Intellectual Property Rights” means:

– all industrial and intellectual property rights including, without limitation, patents, trade marks, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them) other than moral rights.

“party” means:

– a party to this EULA.

“parties” means:

– each party to this EULA.:

“Payment Processor” means:

– a third party payment processor that facilitates Electronic Transactions on the Website. At the date of this EULA this service is provided by Stripe Payments Australia Pty Ltd A.C.N 160 180 343.

“SPC” means:

– a single purchase customer, or a User that does not sign up for a Subscription.

“Products” means:

– any product offered for sale on the Website.

“Sensitive Information” means:

– the information, or any of it, defined by section 6 of the Privacy Act 1988 (Cth) from time to time, which at the time of writing means:

Information or an opinion about an individual’s

racial or ethnic origin; or

political opinions; or

membership of a political association; or

religious beliefs or affiliations; or

philosophical beliefs; or

membership of a professional or trade association; or

membership of a trade union; or;

sexual orientation or practices; or

criminal record;

that is also personal information; or

health information; or

genetic information about an individual that is not otherwise health information; or

biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or

biometric templates.

“Services” means:

– any services provided by The Always under this EULA, and additionally includes a reference to Products as the case requires.

“Subscription” means:

– a monthly subscription on the Website where a periodic payment is made by a Subscriber to receive the associated Services in the relevant month.

“Subscription Fee” means:

– the amount payable by a Subscriber in relation to a Subscription each month.

“User” means:

– a person who has accepted these Terms and Conditions and includes such person who has been issued a User Account, and reference to User includes reference to a Subscriber or a SPC as the case requires.

“User Account” means:

– a user profile or account on the Website, which is protected by password and any other security measures in place from time to time.

“you” or “your” means:

– the User using or accessing the Website, or any part of it (including these Terms and Conditions).

“we”, “us”, “our” means :

– The Always.

“Website” means:

– the software platform accessible through https://thealways.co and any sub-domain, and any associated pages, applications, and resources, or any of them as the case requires.