MSCD Platform Terms and Conditions

my.SmileCareDirect.com “MSCD”:

This MSCD Terms of Service Agreement (this “Agreement”) is entered into by and between MSCD, c/o SmileCareDirect Pty Ltd, an Australian limited liability company ("MSCD") and you, and is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of MSCD services (the “Services”), and represents the entire agreement between you and MSCD concerning the subject matter hereof.

Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms of Service Agreement, which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.

The terms “we”, “us” or “our” shall refer to MSCD. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

2. SERVICES

MSCD Email Marketing and Digital Communication services (the “Service”) enable dental practices to sign up patients, collect and store patient subscription information, and build and conduct email and other communications with their patients. Buy joining and electing to upload your practice list you provide permission to contact your list on your behalf only for the purposes of dental products and services.

The number of contacts in your account may be metered by MSCD.

MSCD is initially free but this may change at the discretion of MSCD. All subscription plan prices are subject to change at any time.

Monthly fees, if they occur, may be charged even if your account was not used to send emails.

It is understood that MSCD makes no guarantee that HTML messages will be rendered properly on all recipients' email programs, due to the wide variety of HTML generation tools available. MSCD makes every attempt to make sure that all email messages sent through our servers follow email standards, but we cannot guarantee that messages will look consistent across all email platforms. For example, if you use Microsoft Word to generate HTML email messages, it is expected that recipients of your message using a non-Microsoft email application may have difficulty reading your message. For best results MSCD recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards.

3. ANTI-SPAM POLICY

By using MSCD, you acknowledge and agree to not use the Services for spam, and you agree to comply with the provisions of the CAN-SPAM Act. We have a zero-tolerance spam policy. You acknowledge and agree that we may immediately terminate any account that we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email activity.

The content you include in any email or we send out on your behalf must be accurate and you may only use the Services to send emails to patients and contacts who have expressly opted in or given you permission to send emails to them. If you do not have written proof that each recipient on your contact list has expressly opted in or given you permission to send emails to them, do not include them in any email marketing campaign. As patients of the practice it is assumed they have consented unless they opt-out to be provided with dental education and offers.

Initially MSCD will manage and monitor communication on a set schedule to ensure patients are not over communicated with. It is envisaged at some stage to allow practice the ability to send their own communication in addition to that of the group, which is why we are setting the clear rules now at the start.

We prohibit the use of third-party, purchased, rented, or harvested mailing lists. You shall not send emails (i) to newsgroups, message boards, distribution lists, or unsolicited email addresses, or (ii) to any recipient who has opted out, unsubscribed, or otherwise objected to receiving such emails from you or another party on whose behalf you may be commissioned.

You represent and warrant that the information you will use in any email marketing campaign, including the header, subject line, and content, is not false, deceptive, or misleading. You agree to include a valid and correct physical address, as well as a valid and correct “from” and “reply to” address in every email. You must be able to provide opt-in verification for each contact for each email marketing campaign. You must comply with all opt-out requests within ten (10) business days of receipt and the opt-out method used must be able to process opt-out requests for a minimum of sixty (60) days after the email is sent. You acknowledge and agree that we have the right but not the obligation to copy and/or store your contact lists, customer and contact information, and other information as needed to provide our service. We shall not use this information in any way that violates Privacy legislation and our Privacy Policy, except as permitted or required by law.

4. PROHIBITED USE

You may not use MSCD to send email campaigns that link to or display pornography, other sexually explicit content, illegal goods or services, content that promotes, encourages, or engages in terrorism or violence, pyramid schemes, chain letters, multi-level marketing campaigns, affiliate and network marketing materials, or any other content we deem inappropriate. You may not exploit MSCD's service agreement by systematically uploading, sending, deleting, then replacing contacts in order to send to more unique email addresses than you're permitted for your service level.

Unfortunately, some industries yield higher-than-normal abuse rates, which can negatively affect the deliverability for other MSCD users. In order to maintain the highest possible delivery rates for all our users, MSCD is unable to send on behalf of certain industries and senders. This includes, but is not limited to, the following:

• Pharmaceutical products not authorised by MSCD
• Work from home, make money on online, and lead generation opportunities
• Online trading, day trading tips, or stock market-related content
• Gambling services, products, or tips
• Multi-level marketing (MLM)
• Affiliate marketing
• Credit repair and get out of debt opportunities
• Mortgage and loan content
• Nutritional, herbal, and vitamin supplements
• List brokers or list rental services
• Counterfeit or "knock off" products appearing to be another brand

It is the responsibility of the practice to ensure that their content falls within these guidelines. MSCD may monitor your account to ensure compliance with these terms and operation within the acceptable standards of the industry and of the email providers you are sending to.

5. PRIVACY; THIRD PARTY SITES

The use of cookies by our tracking utility company, for example, Google Analytics and service providers, is not covered by our privacy policy. We do not have access or control over these cookies. These providers use both session ID and persistent cookies to make it easier for you to use our live chat and for us to log general website traffic. Our third party partners employ clear gifs (a.k.a. Web Beacons/Web Bugs), images, and scripts that help them better manage content on our site. We do not tie the information gathered to our customers' or users' personally identifiable information.

Your patient information is yours, once a patient buys via the consumer site they also become a customer of smilecaredirect.com and we have an obligation to provide the products associated with our site. If you elect to upload your patient list, this too is confidential and remains your property, you can leave at any time and take your patient list with you at any time.

6. TERMINATION

If you do not log into your account for more than 120 days, the account may become inactive. When an account is classified (at MSCD's sole discretion) as inactive, MSCD will flag that account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE MSCD DATABASE. You have your account at the discretion of SmileCareDirect pty ltd, just as you can leave at any time we have the right to terminate your account at any time.

7. USER CONTENT

Some of the features of this Site or the Services may at some time allow Users to view, post, submit, share, publish, store, or manage literary, artistic, musical, or other content, including but not limited to photos and videos (“User Content”). User Content includes all content submitted through your Account. By posting or publishing User Content to the Services or by sending User Content to third parties, you represent and warrant to MSCD that you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.

8. LIMITATION OF LIABILITY

IN NO EVENT SHALL MSCD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT MSCD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL MSCD’S TOTAL AGGREGATE LIABILITY EXCEED $10,000.00 Australian DOLLARS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.

9. INDEMNITY

You agree to protect, defend, indemnify and hold harmless MSCD and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by MSCD directly or indirectly arising from your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.

10. FEES AND PAYMENTS, INCLUDING AUTOMATIC RENEWAL TERMS

SCD at it’s discretion will provide the practice owner with up to 10% of the purchases (excluding shipping costs) made by their patients once the practice has joined, provided the SCD link and is using the SCD link, they can elect to receive their commission in the form of Dental Dollars. Practice owns can elect to take their Dental Dollars via the voucher system or be paid directly to the practice owner.

You agree to pay any and all fees due for Services purchased or obtained at this Site at the time you order the Services. MSCD expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below. MSCD has the right to deduct any fees due from the Dental Dollars account.

IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, MSCD SERVICES OFFER AN AUTOMATIC RENEWAL OPTION. THE AUTOMATIC RENEWAL OPTION AUTOMATICALLY RENEWS THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD. FOR EXAMPLE, IF YOUR LAST SERVICE PERIOD IS FOR ONE MONTH, YOUR RENEWAL PERIOD WILL BE FOR ONE MONTH. THEREFORE, UNLESS YOU CANCEL YOUR ACCOUNT OR SUBSCRIPTION TO THE SERVICES, MSCD WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH MSCD AT MSCD’S THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD.

11. COMPLIANCE WITH LOCAL LAWS

MSCD makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.

12. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF TRIAL BY JURY

This Agreement shall be governed by and construed in accordance with the state law of Victoria, Australia whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought in the state of Victoria, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non convenes with respect to) jurisdiction and venue in the state of Victoria, Australia. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.

13. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

14. ENGLISH LANGUAGE CONTROLS

This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consider