1.1. This website can be accessed at www.eversmilesa.co.za, related mobi-sites and software applications (the “Website”) and is owned and operated by EverSmile South Africa.
1.2. These Website Terms and Conditions govern the ordering, sale and delivery of Goods, and the use of the Website.
1.3. These Terms and Conditions are binding and enforceable against every person that accesses or uses this Website (“you”, “your” or “user”), including without limitation each user who registers as contemplated below (“registered user”). By using the Website and by clicking on the “Register Now”/”Sign up” button on the Website, as may be applicable, you acknowledge that you have read and agree to be bound by these Terms and Conditions.
1.4. The Website enables you to shop online for an extensive range of goods which include braces and aligner cleaner and any other good that EverSmile South Africa adds to their product list. These are known as “Goods”.
- Important Notice
2.1. These Terms and Conditions apply to users who are consumers for purposes of the Consumer Protection Act, 68 of 2008 (the “CPA”).
2.2. These Terms and Conditions contain provisions that appear in similar text and style to this clause and which –
2.2.1. May limit the risk or liability of EverSmile South Africa and/or
2.2.2. May create risk or liability for the user and/or
2.2.3. May compel the user to indemnify EverSmile South Africa and/or
2.2.4. Serves as an acknowledgement, by the user, of a fact.
2.3. Your attention is drawn to these Terms and Conditions because they are important and should be carefully noted.
2.4. If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask EverSmile South Africa to explain it to you before you accept the Terms and Conditions or continue using the Website.
2.5. Nothing in these Terms and Conditions is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either you or EverSmile South Africa in terms of the CPA.
2.6. EverSmile South Africa permits the use of this Website subject to the Terms and Conditions. By using this Website in any way, you shall be deemed to have accepted all the Terms and Conditions unconditionally. You must not use this Website if you do not agree to the Terms and Conditions.
2.7. These Terms and Conditions are divided into three sections, as follows:
Part A – Orders and Sales
Part C – General Legal Terms.
Part D – Return Policy
PART A – ORDERS AND SALES
Registration and use of the Website
4.1. Only registered users may order Goods on the Website.
4.2. To register as a user, you must provide a unique username and password and provide certain information and personal details to EverSmile South Africa You will need to use your unique username and password to access the Website in order to purchase Goods.
4.3. You agree and warrant that your username and password shall:
4.3.1. Be used for personal use only; and
4.3.2. Not be disclosed by you to any third party.
4.4. For security purposes you agree to enter the correct username and password whenever ordering Goods, failing which you will be denied access.
4.5. You agree that, once the correct username and password relating to your account have been entered, irrespective of whether the use of the username and password is unauthorised or fraudulent, you will be liable for payment of such order, save where the order is cancelled by you in accordance with these Terms and Conditions.
4.6. You agree to notify EverSmile South Africa immediately upon becoming aware of or reasonably suspecting any unauthorised access to or use of your username and password and to take steps to mitigate any resultant loss or harm.
4.7. By using the Website you warrant that you are 18 (eighteen) years of age or older and of full legal capacity. If you are under the age of 18 (eighteen) or if you are not legally permitted to enter into a binding agreement, then you may use the Website only with the involvement and supervision of your parent or legal guardian. If your parent or legal guardian supervises you and gives his/her consent, then such person agrees to be bound to these Terms and Conditions and to be liable and responsible for you and all your obligations under these Terms and Conditions.
4.8. You agree that you will not in any way use any device, software or other instrument to interfere or attempt to interfere with the proper working of the Website. In addition, you agree that you will not in any way use any robot, spider, other automatic device, or manual process to monitor, copy, distribute or modify the Website or the information contained herein, without the prior written consent from an authorised Company representative (such consent is deemed given for standard search engine technology employed by Internet search websites to direct Internet users to this Website).
4.9. You may not use the Website to distribute material which is defamatory, offensive, contains or amounts to hate speech or is otherwise unlawful.
4.10. You may not in any way display, publish, copy, print, post or otherwise use the Website and/or the information contained therein without the express prior written consent of an authorised Company representative.
Conclusion of Sales and availability of stock
5.1. Registered users may place orders for Goods, which EverSmile South Africa may accept or reject. Whether or not EverSmile South Africa accepts an order depends on the availability of Goods, correctness of the information relating to the Goods (including without limitation the price) and receipt of payment or payment authorisation by EverSmile South Africa for the Goods.
5.2. NOTE: EverSmile South Africa will indicate the acceptance of your order by delivering the Goods to you, and only at that point will an agreement of sale between you and EverSmile South Africa come into effect (the “Sale”). This is regardless of any communication from EverSmile South Africa stating that your order or payment has been confirmed. EverSmile South Africa will indicate the rejection of your order by cancelling it and, as soon as possible thereafter, refunding you for any amount already paid.
5.3. Prior to delivery of the Goods, you may cancel an order at any time provided you do so before receiving a dispatch or delivery notice. After delivery of the Goods, you may cancel the Sale only in accordance with the Returns Policy.
5.4. Placing Goods in a shopping basket without completing the purchase cycle does not constitute an order for such Goods, and as such, Goods may be removed from the shopping basket if stock is no longer available. You cannot hold EverSmile South Africa liable if such Goods are not available when you complete or attempt to complete the purchase cycle at a later stage.
5.5. You acknowledge that stock of all Goods on offer is limited, in the case of Goods for sale by EverSmile South Africa, EverSmile South Africa will take all reasonable efforts to monitor stock levels and ensure that when stock is no longer available, that offers thereof are discontinued on the Website. However, we cannot guarantee the availability of stock. When Goods are no longer available after placing an order, EverSmile South Africa will notify you and you will be entitled to a refund of the amount paid by you for such Goods.
6. Payment can be made for Goods via Instant EFT and via all major credit Cards – which is a secure online payment facility. All transactions are encrypted using appropriate encryption technology.
Delivery of goods
7.1. EverSmile South Africa offers one method of delivery of Goods to you, which is via courier.
7.2. Some items (heavy or large, based on volumetric weight) may carry additional delivery fees. These additional fees are included in the delivery cost upon checkout.
7.3. Where it accepts your order, EverSmile South Africa will deliver the Goods to you as soon as reasonably possible, but no later than 30 (thirty) days of receipt of your payment (“Delivery Period”). We will notify you if we are unable to deliver the Goods during the Delivery Period. You may then, within 7 (seven) days of receiving such notification elect whether or not to cancel your order for the Goods. If you elect to cancel your order, we will reimburse you for the purchase price.
- We shall take all reasonable efforts to accurately reflect the description, availability, purchase price and delivery charges of Goods on the Website. However, should there be any errors of whatsoever nature on the Website (which are not due to our gross negligence), we shall not be liable for any loss, claim or expense relating to a transaction based on any error, save – in the case of any incorrect purchase price – to the extent of refunding you for any amount already paid, or otherwise as set out in the Returns Policy.
9.1 You must be a valid EverSmile South Africa account holder;
9.2 You may only sign up one email address belonging to yourself. You may not create fictional profiles, email addresses, accounts or otherwise abuse the system.
9.3 You may not sign for a EverSmile South Africa account on behalf of your friends, nor may you sign up using your friends’ email addresses. Each User who signs up as a member must sign up as him- or herself with full knowledge that he/she is creating an account;
9.4 You may not use someone else’s account in order to purchase Goods for yourself from the Website.
9.5. Site Promotions
From time to time EverSmile South Africa may run promotions. These promotions will either be on selected products or site wide. For each promotion there may be specific terms and conditions.
10.1. We respect your privacy and will take all reasonable measures to protect it, as more fully detailed below.
10.2. Should you decide to register as a user on the Website, we may require you to provide us with personal information which includes but is not limited to –
10.2.1. Your name and surname.
10.2.2. Your email address.
10.2.3. Your physical address.
10.2.4. Your gender.
10.2.5. Your mobile number.
10.2.6. Your date of birth.
10.3. Should your personal information change, please inform us and provide us with updates to your personal information as soon as reasonably possible to enable us to update your personal information.
10.4. You may choose to provide additional personal information to us, in which event you agree to provide accurate and current information, and not to impersonate or misrepresent any person or entity or falsely state or otherwise misrepresent your affiliation with anyone or anything.
10.5. Subject to clause 10.6 below, we will not, without your express consent:
10.5.1. Use your personal information for any purpose other than as set out below:
10.5.1.1. In relation to the ordering, sale and delivery of Goods;
10.5.1.2. To contact you regarding current or new Goods or services or any other goods offered by us or any of our divisions and/or partners (unless you have opted out from receiving marketing material from us);
10.5.1.3. To inform you of new features special offers and promotional competitions offered by us.
10.5.1.4. To improve your experience on our Website by inter alia, monitoring statistical non-personal browsing habits and to transact with us.
10.5.2. Disclose your personal information to any third party other than as set out below:
10.5.2.1. To our employees and/or third party service providers who assist us to interact with you via our Website, email or any other method, for the ordering of Goods or when delivering Goods to you, and thus need to know your personal information in order to assist us to communicate with you properly and efficiently;
10.5.2.2. To our partners (including their employees and/or third party service providers) in order for them to interact directly with you via email or any other method for purposes of sending you marketing material regarding any current or new goods or services, new features, special offers or promotional items offered by them (unless you have opted out from receiving marketing material from us)
10.5.2.3. To our suppliers in order for them to liaise directly with you in the event of you submitting a warranty claim regarding any Goods you have purchased which requires their involvement.
10.6. We are entitled to use or disclose your personal information if such use or disclosure is required in order to comply with any applicable law, order of court or legal process served on us, or to protect and defend our rights or property.
10.7. We will ensure that all of our employees, third party service providers and partners (including their employees and third party service providers) having access to your personal information are bound by appropriate and legally binding confidentiality and non-use obligations (save as permitted herein) in relation to your personal information.
10.8. We will –
10.8.1. Treat your personal information as strictly confidential;
10.8.2. Take appropriate technical and organisational measures to ensure that your personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access.
10.8.3. Provide you with access to your personal information to view and/or update personal details;
10.8.4. Promptly notify you if we become aware of any unauthorised use, disclosure or processing of your personal information;
10.8.5. Provide you with reasonable evidence of our compliance with our obligations under this policy on reasonable notice and request;
10.8.6. Upon your request, promptly return or destroy any and all of your personal information in our possession or control.
10.8.7. Not retain your personal information longer than the period for which it was originally needed, unless we are required by law to do so, or you consent to us retaining such information for a longer period.
10.9. EverSmile South Africa undertakes never to sell or make your personal information available to any third party other than as provided for in this policy, unless we are compelled to do so by law. In particular, in the event of a fraudulent online payment, EverSmile South Africa reserves the right to disclose relevant personal information for criminal investigation purposes or in line with any other legal obligation for disclosure of the personal information which may be required of it.
10.10. Whilst we will do all things reasonably necessary to protect your rights of privacy, we cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosures of your personal information, whilst in our possession, made by third parties who are not subject to our control, unless such disclosure is as a result of our gross negligence.
10.11. If you disclose your personal information to a third party, such as an entity which operates a website linked to this Website or anyone other than EverSmile South Africa , EverSmile South Africa SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, HOWSOEVER ARISING, SUFFERED BY YOU AS A RESULT OF THE DISCLOSURE OF SUCH INFORMATION TO THE THIRD PARTY. This is because we do not regulate or control how that third party uses your personal information.
PART C – GENERAL LEGAL TERMS
Changes to these terms and conditions
11.1. EverSmile South Africa may, in its sole discretion, change any of these Terms and Conditions at any time. It is your responsibility to regularly check these Terms and Conditions and make sure that you are satisfied with the changes. Should you not be satisfied, you must not place any further orders on, or in any other way use, the Website.
11.2. Any such change will only apply to your use of this Website after the change is displayed on the Website. If you use the Website after such amended Terms and Conditions have been displayed on the Website, you will be deemed to have accepted such changes.
Ownership and copyright
13.1. The contents of the Website, including any material, information, data, software, icons, text, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs and service marks which are displayed on or incorporated in this Website (“Website Content”) are protected by law, including but not limited to copyright and trade mark law. The Website Content is the property of EverSmile South Africa, its advertisers and/or sponsors and/or is licensed to EverSmile South Africa
13.2. You will not acquire any right, title or interest in or to the Website or the Website Content.
13.3. Any use, distribution or reproduction of the Website Content is prohibited unless expressly authorised in terms of these Terms and Conditions or otherwise provided for in law.
13.4. Where any of the Website Content has been licensed to EverSmile South Africa or belongs to any third party, your rights of use will also be subject to any terms and conditions which that licensor or third party imposes from time to time and you agree to comply with such third party terms and conditions.
14.1. The use of the Website is entirely at your own risk and you assume full responsibility for any risk or loss resulting from use of the Website or reliance on any information on the Website.
14.2. Whilst EverSmile South Africa takes reasonable measures to ensure that the content of the Website is accurate and complete, EverSmile South Africa makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the Website or as to the accuracy, completeness or reliability of any information on the Website.
14.3. EverSmile South Africa disclaims liability for any damage, loss or liability, whether direct, indirect or consequential in nature, arising out of or in connection with your access to or use of the Website and/or any content therein unless otherwise provided by law.
14.4. Although Goods sold from the Website may, under certain specifically defined circumstances, be under warranty, the Website itself and all information provided on the Website is provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, completeness, or non-infringement, as may be allowed in law.
14.5. Any views or statements made or expressed on the Website are not necessarily the views of EverSmile South Africa, its directors, employees and/or agents.
14.6. In addition to the disclaimers contained elsewhere in these Terms and Conditions, EverSmile South Africa also makes no warranty or representation, whether express or implied, that the information or files available on the Website are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of your computer system, computer network, hardware or software in any way. You accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device, or your hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of EverSmile South Africa, its employees, agents or authorised representatives. EverSmile South Africa thus disclaims all liability for any damage, loss or liability of any nature whatsoever arising out of or in in connection with your access to or use of the Website.
Linked third party websites
15.1. This Website may contain links or references to other websites (“Third Party Websites”) which are outside of our control, including those of advertisers. These Terms and Conditions do not apply to those Third Party Websites and EverSmile South Africa is not responsible for the practices and/or privacy policies of those Third Party Websites or the “cookies” that those sites may use.
15.2. Notwithstanding the fact that the Website may refer to or provide links to Third Party Websites, your use of such Third Party Websites is entirely at your own risk and we are not responsible for any loss, expense, claim or damage, whether direct, indirect or consequential, arising from your use of such Third Party Websites or your reliance on any information contained thereon.
Limitation of liability
16.1 EverSmile South Africa cannot be held liable for any inaccurate information published on the Website and/or any incorrect prices displayed on the Website, save where such liability arises from the gross negligence or wilful misconduct of EverSmile South Africa, its employees, agents or authorised representatives. You are encouraged to contact us to report any possible malfunctions or errors by way of email.
16.2. EverSmile South Africa shall not be liable for any direct, indirect, incidental; special or consequential loss or damages which might arise from your use, or reliance upon, the website or the content contained in the website: or your inability to use the website, and/or unlawful activity on the website and/or any linked third party website.
16.3. You hereby indemnify EverSmile South Africa against any loss, claim or damage which may be suffered by yourself or any third party arising in any way from your use of this website and/or third party website.
Availability and termination
17.1 We will use reasonable endeavours to maintain the availability of the Website, except during scheduled maintenance periods, and reserve the right to discontinue providing the Website or any part thereof with or without notice to you.
17.2. EverSmile South Africa may in its sole discretion terminate, suspend and modify this Website, with or without notice to you. You agree EverSmile South Africa will not be liable to you in the event that it chooses to suspend, modify or terminate this Website other than for processing any orders made by you prior to such time and to the extent possible.
17.3. If you fail to comply with your obligations under these Terms and Conditions, including any incident involving payment of the price of an order for any Goods, and you fail to remedy such failure within 7 (seven) days of notice to you by us, this may (in our sole discretion) lead to a suspension of your access to the Website without any prejudice to any claims for damages or otherwise that we may have against you.
Governing law and jurisdiction
18.1. These Terms and Conditions and our relationship and/or any dispute arising from or in connection with these Terms and Conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa. Your continued use of the Website will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from any of these Terms and Conditions.
18.2. In the event of any dispute arising between you and EverSmile South Africa, you hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa ( Gauteng ) notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
18.3. Nothing in this clause 18 or the Terms and Conditions limit your right to approach any court, tribunal or forum of competent jurisdiction in terms of the CPA.
19.1 EverSmile South Africa may, in its sole discretion, at any time and for any reason and without prior written notice, suspend or terminate the operation of the Website or the user’s right to use the Website or any of its contents subject to us processing any orders then already made by you.
19.2. You may not cede, assign or otherwise transfer your rights and obligations in terms of these Terms and Conditions to any third party.
19.3. Any failure on the part of you or EverSmile South Africa to enforce any right in terms hereof shall not constitute a waiver of that right.
19.4. If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
19.5. No variation, addition, deletion, or agreed cancellation of the Terms and Conditions will be of any force or effect unless in writing and accepted by or on behalf of the parties hereto.
19.6. No indulgence, extension of time, relaxation or latitude which any party (the “grantor”) may show grant or allow to the other (the “grantee”) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
19.7 These Terms and Conditions contain the whole agreement between you and EverSmile South Africa and no other warranty or undertaking is valid, unless contained in this document between the parties.
PART D – RETURNS POLICY
- We want you to be happy with your purchase. If you are not completely satisfied, you can return the product to us and we will replace it or credit your account, subject to the terms below. This Policy forms part of the EverSmile South Africa Terms and Conditions and words defined in the Terms and Conditions have the same meaning in this Policy, unless the context indicates otherwise. Nothing in this Policy is intended to limit your statutory rights in any way.
20.1 Unwanted products
In general, you can return an unwanted product to us at no charge, provided:
20.1.1. It is undamaged and unused, with the original labels and stickers still attached.
20.1.2. It is in the original packaging, which must be undamaged and in its original condition with all seals still intact (if applicable).
20.1.3. You log a return on the Website within 30 days of delivery to you or collection by you of the unwanted product.
20.1.4. NOTE: We reserve the right to refuse a return, if the unwanted product is returned damaged or not in a re-saleable condition and missing any accessories.
20.1.5.We will collect the product from you at no charge. Once we have inspected the product and validated your return, we will credit your account with the purchase price of the product within 8 days of the return (or refund you if that is your preference). Please bear in mind that refunds can take up to 5 working days to reflect in your account.
20.1.6. We reserve the right to inspect the product to validate your return.
- Received the wrong order?
If we accidentally deliver the wrong product to you, or if the product is not as described on the Website, please notify us and we will collect the product from you at no charge. Once we have inspected the product and validated your return, we will at your choice deliver the correct product to you as soon as possible (if the correct product is available); or credit your account with the purchase price of the product within 8 days of the return (or refund you if that is your preference). Please bear in mind that refunds can take up to 5 working days to reflect in your account.
- Products damaged on delivery?
Should a product be damaged at the time of delivery / collection, please notify us within 5 days of such delivery / collection by logging a return on the Website.
We will arrange to collect the product from you at no charge. Once we have inspected the product and validated your return, we will at your choice replace the product as soon as possible (if replacement is possible) or credit your account with the purchase price of the product (or refund you if that is your preference). Credits and refunds are normally handled within 8 days of logging the return .Bear in mind that refunds can take up to 5 working days to reflect in your account). Replacements could take longer, depending on replacement availability.
- Defective products?
We do our best to ensure that the products we deliver to you are of a high quality and without defects.
What is a defect? A defect is a material imperfection in the manufacture of a product or any characteristic of a product, which makes the product less acceptable than one would reasonably be entitled to expect in the circumstances.
23.1 The following will NOT be regarded as defects and will not entitle you to a return under this section:
23.1.1.Damage arising from negligence, user abuse or incorrect usage of the product;
23.1.2. Damage arising from a failure to adequately care for the product;
23.1.3. Damage arising from unauthorized alterations to the product:
23.1.4. Standard Warranty
23.2. If you have received a product which turns out to be defective, please notify us as soon as reasonably possible after you become aware of the defect. You can do so by logging a return on the Website, and we will arrange to collect the product from you at no charge. Once we have inspected the product and validated your return, we will at your choice replace the product (if such replacement is possible) or credit your account with the purchase price of the product (or refund you if that is your preference). Credits and refunds are normally handled within 8 days of logging the return. Bear in mind that refunds can take up to 5 working days to reflect in your account. Replacements could take longer, depending on replacement availability.
23.3. Please provide the original packaging with the defective item when you return it to us – regardless of whether you request a replacement or a refund. Our courier reserves the right to refuse collection of a product that is not properly packaged for transport.
23.4. EverSmile South Africa is under no obligation to provide you with a credit, replacement for any return logged after one month.
If you return a product that does not comply with this Policy, you may be liable to reimburse EverSmile South Africa for the cost of collecting the product from you and the cost of having the product returned to you.