Last updated May 24, 2018
1.1. THIS EYEQUE END USER AGREEMENT AND TERMS OF SERVICE (THE “TERMS”) CONSTITUTES A BINDING AGREEMENT BETWEEN YOU ("END USER" OR "YOU") AND EYEQUE CORPORATION (“EYEQUE”, “OUR”, “WE”, “US”).
1.2. These Terms govern the use of all products and services that EyeQue makes available to you, including our websites, mobile applications on iOS and Android, software and cloud services, subscription services, hardware devices and all documentation and information related to such products and services (collectively, the “Services”). Please visit eyeque.com/product for a complete list of the Services that we provide and that are governed by the Terms. These Terms also include any product specific terms made available at eyeque.com/terms, which are hereby incorporated by reference into these Terms.
1.3. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. BY USING THE SERVICES OR CLICKING THE "AGREE" BUTTON, YOU:
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICES. YOU ARE DEEMED TO ACCEPT THESE SERVICES IF YOU USE OR CONTINUE TO USE ANY OF THE SERVICES AFTER THESE TERMS TAKE EFFECT ON [DATE].
1.4. Changes. From time to time, we may update the Terms by posting changes to eyeque.com/terms, and for a period of thirty (30) days after we post the amended Terms, we will also post a notice on our website stating that these Terms have changed. As permitted by applicable law, any change, addition or deletion will become effective at the time we post the revised Terms to our website. Unless we state otherwise, the change, addition or deletion will apply to your future and existing uses of the Services. You are deemed to accept the changes, additions or deletions if: (1) you do not notify us to the contrary in writing within thirty (30) days of the date of our notice or such other time specified in the notice; or (2) you use the Services after such notice period. If you do not agree with these changes, you will not be able to use the Services.
2.1. Essential Function. The Services provide a method for understanding and observing certain aspects about your vision, but are subject to a number of important limitations:
2.2. Information about Providers. From time to time, the Services may provide information about how to contact eyecare or healthcare professionals in your eye area. This information provided by the Services is not a recommendation, referral or endorsement of the quality or competency of the eyecare or healthcare professionals. We have no relationship with these eyecare or healthcare professionals other than our collection of their information from publicly-available databases. Our provision of their contact information does not constitute any form of eye, vision or healthcare advice.
3.1. Term. The effectiveness of these Terms commences when you begin using the Services and will continue in effect until terminated by you or EyeQue as set forth in this Section 3. You may terminate these Terms for any reason by informing EyeQue that you wish to stop using the Services. EyeQue may terminate these Terms at any time for any reason. In addition, these Terms will terminate immediately and automatically without any notice if you violate any of the terms and conditions of these Terms. You agree that you do not have any rights in the Services and EyeQue will have no liability to you if this Services is discontinued or your ability to access the Services is terminated. You further agree that EyeQue will not be liable for any modification or suspension of the Services.
3.2. Effect of Termination. Upon termination: (i) all rights granted to you under these Terms will also terminate; and (ii) you must cease all use of the Services. Termination will not limit any of EyeQue’s rights or remedies at law or in equity. EyeQue’s right to use your data will survive termination of these Terms.
4.1. Geographic Restrictions. The Services are based in the state of California in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
4.2. Updates. EyeQue may from time to time in its sole discretion develop and provide updates to this Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates", which definition is also incorporated into the definition of the “Services”). Updates may also modify or delete in their entirety certain features and functionality. You agree that EyeQue has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that this Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of this Services and be subject to all terms and conditions of these Terms. From time to time, the Services may automatically send Updates to your device. You agree to accept these Updates, and to pay for any costs associated with receiving them. Based on the settings of your mobile device, when your mobile device is connected to the internet, either: (a) the Services will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.
4.3. Purchases. You may purchase paid portions of the Services through the mobile application or through the website. EyeQue uses payment gateways for payment processing. We do not have control over our payment processors and disclaim all liability with respect to them.
4.4. Returns. If you are unhappy with the products you receive through a direct order (such as the Personal Vision Tracker or EyeQue Insight) for any reason, you may return it within 30 days of the shipping date. To return a product, send an email to firstname.lastname@example.org and we will provide you with instructions for processing the return. The purchaser is responsible for the cost of shipping for the returned device. Once received, EyeQue will reimburse you for the cost of the device purchase. There are no refunds for paid Service subscription fees.
4.5. Fees. All fees are exclusive of any taxes, levies, customs, or duties imposed by governing authorities, and you are responsible for payment of all such taxes, levies, VAT or duties applicable to your transaction.
5.1. Grant of License. You are hereby granted a non-exclusive, non-transferable right to use the Services subject to these Terms. No title nor any intellectual property rights are transferred to you, but rather remain with EyeQue or its licensors, who own full and complete title, and EyeQue and respective licensors reserve all rights not expressly granted to you. Any use of the Services in any manner not allowed under this Agreement, including, without limitation, resale, transfer, modification or distribution of the Services or copying or distribution of text, pictures, music, video, data, hyperlinks, displays and other content provided by the Services is prohibited. This Agreement does not entitle you to receive and does not obligate EyeQue to provide hard-copy documentation, support, telephone assistance, or enhancements or updates to the Services. You may not modify, alter, copy, publicly display or perform, distribute, create derivative works, of the Services. You will not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services or any part thereof. Any attempt to do so is a violation of the rights of EyeQue and its licensors of the Services.
5.2. EyeQue Content. This Services, and any services performed, provided or enabled by or through this Services and all the information, communications, scripting, photos, text, video, graphics, music, sounds, images, trademarks, logos, product and program names, and other materials and complications of the foregoing, that may be provided to you via this Services (collectively “Content”) by EyeQue or its content providers, are the property of EyeQue and/or its content providers, and are protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws, and are intended for the lawful use by registered users (as applicable) of this Services.
5.3. Ownership There are a number of trademarks, logos, service marks, slogans, product names and designations and other proprietary indicia (collectively “Trademarks”) used in the Services and in the Content. By making these Trademarks available through the Services and in the Content, EyeQue is not granting you a license to use them in any fashion, and you are not granted any license under any of EyeQue’s or any third party's Trademarks or other intellectual property rights, except as specifically set forth in this Agreement. No EyeQue Trademarks may be used as a username, icon, identifier, hyperlink or in any other manner without EyeQue’s prior written permission. The Services, Content, and the selection, coordination, and arrangement thereof, is owned either by EyeQue, or its respective licensors. The unauthorized copying, displaying, selling, distributing or other use of any Content or Services is a violation of the law.
5.4. Third-Party Materials. The Services may display, include, or make available content or software owned by third-parties (including software, data, information, applications, and other products, Services, and/or materials) or provide links to third-party websites or Services, including through third-party advertising (”Third-Party Materials”). Portions of the Services were developed and owned by third-parties and constitute Third-Party Materials. You acknowledge and agree that EyeQue is not responsible for Third-Party Materials, including their effectiveness, accuracy, completeness, timeliness, validity, non-infringement, legality, decency, quality, or any other aspect thereof. EyeQue does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
5.5. Links to Third-Party Websites, Applications, and Services. The Services may provide connectivity or links to other Third-Party Services, websites, applications, software, and other content from third-party providers such as social media partners, wireless carriers, and third-party software application developers (“Third-Party Services”). The Services may allow you to add/configure certain Third-Party Services to your device. EyeQue has no control over, makes no representations or warranties whatsoever about any of the Third-Party Services that you may access, is not responsible for the availability of such Third-Party Services, and does not endorse nor is responsible or liable for any content or other materials on or available from such Third-Party Services. Your use of the Third-Party Services may be subject to additional terms, including software license terms, of those third parties. Users who utilize the Third-Party Services should be aware that their Account and other personal information held by those third parties may be transmitted through and stored on EyeQue servers and/or applications located in the United States and elsewhere. You understand and agree that the companies that provide the Third-Party Services may access, use and share certain information about you, if you use the Third-Party Services. You understand and agree EyeQue is not responsible for these companies, or their use of any other of your information. Your use of the Third-Party Services is at your own risk.
6.1. THE SERVICES ARE NOT HEALTH SERVICES OR MEDICAL ADVICE. YOU AGREE THAT THE SERVICES DO NOT MEASURE EYE HEALTH, VISION HEALTH OR INVOLVE ANY SORT OF MEDICAL OR HEALTH RELATED SERVICE, PRODUCT OR ADVICE OF ANY KIND. YOU AGREE NOT TO RELY ON THE SERVICES OR THE INFORMATION PROVIDED BY THE SERVICES IN CONNECTION WITH ANY MEDICAL OR HEALTH DECISION.
6.2. NO RELIANCE ON INFORMATION. EYEQUE AND ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, AND CONTRACTORS AND EACH OF THEIR OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, “EYEQUE AFFILIATES”) MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE COMPLETENESS, ACCURACY, TIMELINESS OR ADEQUACY OF ANY INFORMATION, FACTS, VIEWS, OPINIONS, STATEMENTS OR RECOMMENDATIONS CONTAINED IN THE SERVICES. REFERENCE TO ANY PRODUCT, PROCESS, PUBLICATION OR SERVICE OF ANY THIRD PARTY BY TRADE NAME, DOMAIN NAME, TRADEMARK, SERVICE MARK, LOGO, MANUFACTURER OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ITS ENDORSEMENT OR RECOMMENDATION BY EYEQUE OR THE EYEQUE AFFILIATES.
6.3. INTERNET SECURITY. THE INTERNET MAY BE SUBJECT TO BREACHES OF SECURITY. EYEQUE AND THE EYEQUE AFFILIATES ARE NOT RESPONSIBLE FOR ANY RESULTING DAMAGE TO ANY USER’S DEVICE OR COMPUTER FROM ANY SUCH SECURITY BREACH, OR FROM ANY VIRUS, BUGS, TAMPERING, UNAUTHORIZED INTERVENTION, FRAUD, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, INTERNET INFRASTRUCTURE FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. YOU SHOULD ALSO BE AWARE THAT E-MAIL AND OTHER SUBMISSIONS OVER THE INTERNET MAY NOT BE SECURE, AND YOU SHOULD CONSIDER THIS BEFORE E-MAILING EYEQUE OR THE EYEQUE AFFILIATES ANY INFORMATION OR INFORMATION AVAILABLE USING THE SERVICES. EYEQUE AND THE EYEQUE AFFILIATES MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SUITABILITY, FUNCTIONALITY, PERFORMANCE, AVAILABILITY OR OPERATION OF THE SERVICES. THIS SERVICES MAY BE TEMPORARILY UNAVAILABLE DUE TO MAINTENANCE OR MALFUNCTION OF COMPUTER EQUIPMENT.
6.4. NO WARRANTY. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER EyeQue, THE EyeQue AFFILIATES NOR THEIR LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES: (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT; (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (C) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS; (D) THAT THE SERVICES OR ANY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGE; AND (E) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS.
7.1. APPLICABILITY OF LIMITATIONS. As a consumer, you have certain legal rights. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties, including exclusions relating to products or Services that are faulty or not as described, or the exclusion or limitation of incidental or consequential damages or other rights. For a full description of your legal rights you should refer to the laws applicable in your country or jurisdiction.
7.2. TYPE OF CLAIMS AND DAMAGES. YOU AGREE TO HOLD EYEQUE OR ANY EYEQUE AFFILIATES HARMLESS UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF EYEQUE OR THE EYEQUE AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; (B) LOSS OF PROFITS, REVENUES, DEALERS, OPPORTUNITIES, OR GOODWILL; (C) UNAVAILABILITY OF ANY OR THE SERVICES; (D) INVESTMENTS, EXPENDITURES OR COMMITMENTS BY YOU RELATED TO USE OF OR ACCESS TO THE SERVICES; (E) COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (F) UNAUTHORIZED ACCESS TO DEVICES, OR ANY COMPROMISE, ALTERATION OR LOSS OF YOUR DATA; (G) COST OF REPLACEMENT OR RESTORATION OF ANY LOST OR ALTERED DATA; (H) ACTS OR OMISSIONS ATTRIBUTABLE THE PROVISION OF ANY THIRD-PARTY MATERIALS; (I) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY EyeQue, LAW ENFORCEMENT OR OTHER AUTHORITIES REGARDING YOUR USE OF THE SERVICES OR THE CONTENT; (J) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; OR (K) THE CONDUCT, ACTIONS OR INACTIONS OF OTHER USERS OR YOUR INTERACTIONS OR RELATIONSHIPS WITH OTHER USERS.
7.3. AGGREGATE LIABILITY. YOU AGREE THAT IN NO EVENT WILL EYEQUE OR ITS AFFILIATES’ TOTAL LIABILITY FOR ALL CLAIMS YOU MAY HAVE THAT RELATE TO THESE TERMS, THE SERVICES OR THE CONTENT EXCEED US $1,000.
10.1. Contacting EyeQue. In the event of a complaint or concern regarding this Agreement or the Services, or for more information, please contact EyeQue at the following email address: email@example.com.
10.2. Mandatory Arbitration. For all disputes, you must first send a written description of your claim to EyeQue to allow us an opportunity to resolve the dispute. You and EyeQue each agree to negotiate your claim in good faith. If we still cannot resolve the dispute you may request arbitration if your claim or dispute cannot be resolved within 60 days. Please read this section carefully. It affects your legal rights. It provides for resolution of disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of this Agreement.
10.3. Arbitration Procedures. The arbitration of any dispute or claim shall be conducted in accordance with the rules of the American Arbitration Association ("AAA"), including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement. The AAA Rules and information about arbitration and fees are available online at www.adr.org. You agree that this Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce this Agreement as a court would. Any arbitration shall be confidential, and neither party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
10.4. Costs. Each party will bear the fees and expense of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. Each party will equally share all filing, administration and arbitrator fees.
10.5. Class Action Waiver and Jury Waiver. You agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and EyeQue that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If you opt out of the arbitration provision as specified above, this class action waiver provision will not apply to you. Neither you, nor any other user of the Services, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt out procedure set forth above. If for any reason a claim proceeds in court rather than through arbitration, you and EyeQue each waive any right to a jury trial.
10.6. Governing Law. By using the Services, you agree that the statutes and laws of the United States and the State of California without regard to conflicts of laws principles, will apply to all matters relating to use of the Services. If we are unable to commence arbitration, you agree that any litigation shall be subject to the exclusive jurisdiction of the state or federal courts in Alameda County, California, United States. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to these Terms.
11.1. Assignment. EyeQue may assign these Terms in whole or in part, at any time with or without notice to you. You may not assign these Terms, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use any part of the Services. To the extent that you allow a third party to use your device, you shall remain solely responsible for the use of the Services by others using the device.
11.2. Entire Agreement. These Terms constitute the entire agreement between you and EyeQue governing your use of the Services, superseding any prior agreements between you and EyeQue relating to your use of the Services. You may also be subject to additional terms and conditions (including, but not limited to, terms and conditions from your wireless carrier or operator) that may apply to your use of the Services. The section titles in these Terms are for convenience only and have no legal or contractual effect.
11.3. Severability and Waiver. If any provision of these Terms is held to be invalid by any law, rule, order or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of these Terms. The failure of EyeQue to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
11.4. Force Majeure. The failure of EyeQue to comply with these Terms due to an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of EyeQue, shall not be deemed a breach of these Terms.
11.5. Communication Preferences. You consent to receive communications about these Terms electronically through the email address listed in your Account. If you wish to receive communications in another manner, you may contact us at firstname.lastname@example.org to change your communication preferences.
This EyeQue Data Processing Addendum (“Addendum”) amends the EyeQue Terms of Service (the “Agreement”) by and between you and EyeQue Inc., a US corporation with offices at 39608 Eureka Drive, Newark, CA USA (“EyeQue”).
(a) “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC, and any legislation and/or regulation implementing or made pursuant to them, or which amends or replaces any of them (including the General Data Protection Regulation, Regulation (EU) 2016/679);
(b) “Data Processor”, “Data Subject”, “Processor”, “Processing”, “Subprocessor”, and “Supervisory Authority” shall be interpreted in accordance with applicable Data Protection Legislation;
(c) “Personal Data” as used in this Addendum means information relating to an identifiable or identified Data Subject who visits or engages in transactions through your store (a “Customer”), which EyeQue Processes as a Data Processor in the course of providing you with the Services. Notwithstanding the foregoing sentence, Personal Data does not include information that EyeQue processes in the context of services that it provides directly to a consumer, such as through its consumer-facing applications like Frenzy or its consumer-facing services like EyeQue Pay; and
(d) All other capitalized terms in this Addendum shall have the same definition as in the Agreement.
2.1. Our website is hosted in a secure cloud environment using Amazon Web Services. This Personal Data may be transferred to other regions, including to Canada and the United States. Such transfers will be completed in compliance with relevant Data Protection Legislation.
2.2. When EyeQue Processes Personal Data in the course of providing the Services, EyeQue will:
2.3 In the course of providing the Services, you acknowledge and agree that EyeQue may use Subprocessors to Process the Personal Data. EyeQue’s use of any specific Subprocessor to process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between EyeQue and Subprocessor.
3.1 In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail. For avoidance of doubt and to the extent allowed by applicable law, any and all liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement. You acknowledge and agree that EyeQue may amend this Addendum from time to time by posting the relevant amended and restated Addendum on EyeQue’s website, available at EyeQue.com and such amendments to the Addendum are effective as of the date of posting. Your continued use of the Services after the amended Addendum is posted to EyeQue’s website constitutes your agreement to, and acceptance of, the amended Addendum. If you do not agree to any changes to the Addendum, do not continue to use the Service.
3.2 Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.
3.3 The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the United States of America applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of California with respect to any dispute or claim arising out of or in connection with this Addendum.