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Last updated September 20, 2019

 

1. Introduction

 

1.1  THIS EYEQUE END USER AGREEMENT AND TERMS OF SERVICE (THE “TERMS”) CONSTITUTES A BINDING AGREEMENT BETWEEN YOU (“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 (the “App”), 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 https://eyeque.com/terms-of-service, 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:

ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS;

AGREE THAT THE PRODUCTS AND SERVICES THAT EYEQUE PROVIDES DO NOT MEASURE OR PROVIDE YOU WITH THE STATUS OF YOUR EYE HEALTH OR VISION;

AGREE THAT THE PRODUCTS AND SERVICES EYEQUE PROVIDES IS LIMITED TO THE COLLECTION OF USER SUBMISSIONS AND MAY NOT UNDER ANY CIRCUMSTANCES BE CONSIDERED MEDICAL OR HEALTH ADVICE OR INFORMATION;

AGREE NOT TO RELY ON THE INFORMATION GENERATED BY THE SERVICES AND THAT YOU WILL SEEK THE ADVICE AND CARE OF A QUALIFIED HEALTHCARE PROFESSIONAL FOR ANY EYE OR HEALTH PROBLEMS YOU MAY HAVE;

REPRESENT THAT YOU RESIDE IN THE UNITED STATES AND ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND

YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THESE TERMS.

IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND EYEQUE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 12 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).

1.3  Changes.

From time to time, we may update the Terms in our sole discretion. If we do, we’ll let you know by posting the updated Terms to our website  and we may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. Unless we state otherwise, the change, addition or deletion will apply to your use of the Services. You are deemed to accept the changes, additions or deletions if you use the Services after we have posted updated Terms. If you do not agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

1.3  Your Privacy Rights.

Please refer to our Privacy Policy for information on how we collect, use and share your information. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.

 

2. Function And Purpose Of 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:

The Services depend on the accuracy of the information you submit to the Services and how you use the Services. If you do not submit accurate information or do not use the Services correctly, the Services may malfunction resulting in the provision of inaccurate information to you.

The principal purpose of the Services is to collect User Submissions. The Services may only be used for the sole purpose of providing you certain observable information based on how the Services work.

The Services do not measure or provide you with any indication about the status of your eye health or your vision.

You must visit an eyecare or healthcare professional on a regular basis to maintain your vision and your health and the Services is in no way constitute medical advice or medical information.

2.2. Information about Providers.

From time to time, the Services may provide information about how to contact eyecare or healthcare professionals. 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. Our provision of their contact information does not constitute any form of eye, vision or healthcare advice. We provide the information only as a convenience and are not responsible for the content, products or services on or available from any eyecare or healthcare professionals. You acknowledge sole responsibility for and assume all risk arising from, your use of any eyecare or healthcare professional you discover via the Services.

 

3. Termination.

 

3.1. Term.

The effectiveness of these Terms commences when you agree to them or otherwise begin using the Services. The Terms 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 sending an email to support@eyeque.com informing EyeQue that you wish to stop using the Services. EyeQue may terminate and/or suspend your access to and use of the Services, at our sole discretion, at any time without notice to you. You agree that EyeQue will have no liability to you if the Services are 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) Section(s) 3; 4.5.1; 4.5.2; 4.5.3; 5.2; 5.3; 5.4; 6; 7; 8; 12; and 13 will survive; (ii) all rights granted to you under these Terms will also terminate; and (iii) you must cease all use of the Services. Termination will not limit any of EyeQue’s rights or remedies at law or in equity.

 

4. Using The Services.

4.1. Who May Use the Services?

You may use the Services only if you are 18 years or older and capable of forming a binding contract with EyeQue, and not otherwise barred from using the Services under applicable law. For certain features of the Services you’ll need an account. It’s important that you provide us with accurate, complete and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You’re responsible for all activities that occur under your account.

4.2. 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.

4.3. Feedback.

We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.

4.4. Updates.

EyeQue may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”, the definition of which 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 the 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 the 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: (i) the Services will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates.

4.5. Purchases.

EyeQue requires payment of a fee for use of the Services (or certain portions thereof). You also agree to make payment for any products you purchase via the Services. You have the option of making a one-time payment (“One-Time Payment”) or purchasing a subscription (“Subscription”) for such use or purchases.

4.5.1 General.

Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.

4.5.2 Subscriptions.

If you purchase a Subscription, you will be charged the annual Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each year thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE EYEQUE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each year on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. No less than thirty (30) days and no more than sixty (60) days before your Subscription term ends, or otherwise in accordance with applicable law, EyeQue will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or EyeQue. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.

4.5.3 Cancelling One-Time Payment or Subscription.

Subject to applicable law, and unless otherwise communicated by EyeQue to you, you may cancel a Transaction for a full refund within ten (10) calendar days of your initial purchase. AFTER THAT, EXCEPT AS SET FORTH IN SECTION 4.5, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to support@eyeque.com. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges.

4.6 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 support@eyeque.com 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.

 

5. License Grant, Content, And Uber Submissions.

5.1. Grant of License.

Subject to your compliance with these Terms, you are hereby granted a non-exclusive, non-transferable right to use the Services. 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 these Term, 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. These Terms do not entitle you to receive and do 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. Unless expressly permitted in a separate agreement with EyeQue, 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 and Ownership.

For purposes of these Terms, “Content” means data, information or other materials that are generated, provided or otherwise made available through the Services, excluding User Submissions. As between you and EyeQue, EyeQue owns all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries.

5.3. User Submissions.

For purposes of these Terms, a “User Submission” is any information you provide to us through your use of the Services. You agree that we may use your User Submissions in order to operate, provide, and improve the Services.

5.4. De-identified Data.

You acknowledge and agree that we may collect, analyze and use de-identified and/or aggregated data regarding the usage and performance of the Services, including data derived from personal information, and create de-identified and/or aggregated data that is not identifiable to any specific person (“De-Identified Data”) as further described in our Privacy Policy. We may retain and use the De-Identified Data without restriction for any purpose, including, but not limited to, operating, analyzing, improving or marketing the Services and any related products and services.

5.5. Removal of User Submissions.

You can remove your User Submission by asking EyeQue to delete it at which point EyeQue will de-identify and/or aggregate your User Submission such that it is anonymized and no longer attributable to you. You acknowledge and agree that in certain instances, some of your User Submissions may not be completely removed and copies of your User Submissions may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Submissions.

 

6. Disclaimers.

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. NO RELIANCE ON INFORMATION.

EYEQUE AND ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES,CONTRACTORS, AND AGENTS AND EACH OF THEIR OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS (COLLECTIVELY, “EYEQUE PARTIES”) 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 PARTIES.

6.3. INTERNET SECURITY.

THE SERVICES MAY BE SUBJECT TO BREACHES OF SECURITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EYEQUE AND THE EYEQUE PARTIES 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 PARTIES ANY INFORMATION OR INFORMATION MADE AVAILABLE USING THE SERVICES. EYEQUE AND THE EYEQUE PARTIES MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SUITABILITY, FUNCTIONALITY, PERFORMANCE, AVAILABILITY OR OPERATION OF THE SERVICES. THE SERVICES MAY BE TEMPORARILY UNAVAILABLE DUE TO MAINTENANCE OR MALFUNCTION OF COMPUTER EQUIPMENT.

6.4. NO WARRANTY.

THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER EYEQUE, THE EYEQUE PARTIES NOR THEIR LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, AND EXPLICITLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES: (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT; (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (III) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS; (IV) THAT THE SERVICES OR ANY CONTENT, WILL BE ACCURATE, COMPLETE, RELIABLE, SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (V) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS.

 

7. Limitations Of Liability.

7.1. APPLICABILITY OF LIMITATIONS.

As a consumer, you have certain legal rights. The disclaimers, exclusions, and limitations of liability under these Terms 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.

7.2. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EYEQUE, THE EYEQUE PARTIES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EYEQUE OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

7.3. AGGREGATE LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL EYEQUE OR THE EYEQUE PARTIES’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO EYEQUE FOR USE OF THE SERVICES OR ONE THOUSAND DOLLARS ($1,000), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO EYEQUE, AS APPLICABLE.

7.4 BASIS OF THE BARGIN. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EYEQUE AND YOU.

 

8. Indemnity.

You will indemnify and hold harmless EyeQue and the EyeQue Parties from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services, (ii) your User Submission, or (iii) your violation of these Terms.

 

9. Rights And Terms For Apps.

9.1. App License.

If you comply with these Terms, EyeQue grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.

9.2. Additional Information: Apple App Store. This Section 9.2 applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.

 

10. General Prohibitions And EyeQue’s Enforcement Rights.

You agree not to do any of the following:

ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS;
Post, upload, publish, submit or transmit any information that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

Use, display, mirror or frame the Services or any individual element within the Services, EyeQue’s name, any EyeQue trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without EyeQue’s express written consent;

Access, tamper with, or use non-public areas of the Services, EyeQue’s computer systems, or the technical delivery systems of EyeQue’s providers;

Attempt to probe, scan or test the vulnerability of any EyeQue system or network or breach any security or authentication measures;

Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by EyeQue or any of EyeQue’s providers or any other third party (including another user) to protect the Services;

Attempt to access or search the Services or download Content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by EyeQue or other generally available third-party web browsers;

Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;Use any meta tags or other hidden text or metadata utilizing an EyeQue trademark, logo URL or product name without EyeQue’s express written consent;

Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;

Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;

Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;

Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;

Collect or store any personal information from the Services from other users of the Services without their express permission;

Impersonate or misrepresent your affiliation with any person or entity;

Violate any applicable law or regulation; or

Encourage or enable any other individual to do any of the foregoing.

EyeQue is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content and/or User Submissions, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute Users who violate the law

 

11. Third Party Materials And Sources.

11.1. Third Party Materials.

The Services (including the App) 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.

11.2. Links to Third-Party Websites, Applications, and Services.

The Services (including the App) may provide connectivity or links to other third-party websites, applications, software, and other content from third-party services 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 with the 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. In addition, 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.

 

12. Dispute Resolution.

12.1 Mandatory Arbitration of Disputes.

We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and EyeQue agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and EyeQue are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

12.2. Exceptions and Opt-out.

As limited exceptions to Section 12.1 above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at support@eyeque.com or by regular mail at Attn: Arbitration Opt-Out, EyeQue Corporation, 39608 Eureka Dr, Newark, CA 94560 within thirty (30) days following the date you first agree to these Terms.

12.3 Conducting Arbitration and Arbitration Rules.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

12.4. Costs.

Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

12.5. Class Action Waiver.

YOU AND EYEQUE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

12.6 Effect of Changes on Arbitration.

Notwithstanding the provisions of Section 1.4 “Changes” above, if EyeQue changes any of the terms of this Section 12 “Dispute Resolution” after the date you most recently accepted these Terms, you may reject any such change by sending us written notice (including by email to support@eyeque.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of EyeQue’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and EyeQue in accordance with the terms of this Section 12 “Dispute Resolution” as of the date you most recently accepted these Terms.

12.7 Severability.

With the exception of any of the provisions in Section 12.5 of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

 

13. General.

13.1 Reservations of Rights.

EyeQue and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

13.2. Governing Law.

These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 12 “Dispute Resolution,” the exclusive jurisdiction for all Disputes that you and EyeQue are not required to arbitrate will be the state and federal courts located in the Alameda County, California, United States, and you and EyeQue each waive any objection to jurisdiction and venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to these Terms.

13.3. Entire Agreement.

These Terms constitute the entire and exclusive understanding and agreement between EyeQue and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between EyeQue and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise. Any attempt by you to assign or transfer these Terms will be null. EyeQue may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

13.4. Notices.

Any notices or other communications provided by EyeQue under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

13.5. Waiver of Rights.

EyeQue’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of EyeQue. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

13.6. 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.

13.7. 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 support@eyeque.com to change your communication preferences.

 

14. Contact Information

If you have any questions about these Terms or the Services, please contact EyeQue at:EyeQue Corporation 39608 Eureka Dr Newark, CA 94560 support@eyeque.com

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