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-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
YOUR EYE HEALTH OR VISION;
- AGREE THAT THE PRODUCTS AND SERVICES EYEQUE PROVIDES IS LIMITED TO THE COLLECTION OF DATA AND MAY NOT
UNDER ANY CIRCUMSTANCES BE CONSIDERED MEDICAL OR HEALTH ADVICE OR INFORMATION;
- AGREE NOT TO RELY ON THE DATA 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;
- AGREE THAT ALL DISPUTES WILL BE SETTLED THROUGH ARBITRATION AND IN ACCORDANCE WITH CALIFORNIA LAW AS SET
FORTH IN SECTION 10;
- REPRESENT THAT YOU RESIDE IN THE UNITED STATES AND ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER
A BINDING AGREEMENT; AND
- YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THESE TERMS.
- IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICES. YOU ARE DEEMED TO ACCEPT THESE SERVICES
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-of-service, 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.
- 1.5. Your Privacy Rights. You acknowledge that when you download, install, or use the
Services, EyeQue may
use automatic means (including, for example, cookies and web beacons) to collect information about your mobile
device and about your use of the Services. Information that EyeQue collects may be used by EyeQue or
EyeQue’slicensors for analyzing your use of the Services and for improving the services provided by EyeQue and
its licensors. You also may be required to provide certain information about yourself as a condition to
downloading, installing, or using the Services or certain of its features or functionality. All information we
eyeque.com/privacy, which hereby are incorporated as part of these Terms. By downloading, installing, using,
and providing information to or through this Services, you consent to all actions taken by us with respect to
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 the do not use the Services correctly, the Services
may malfunction resulting in inaccurate data.
- The principal purpose of the Services is to collect data. The Services may only be used for the sole
purpose of providing you certain observable data 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
- 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 constitutes 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 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. Using the Services.
- 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
- 4.5. Fees. All fees are exclusive of any taxes, levies, customs, or duties imposed by
and you are responsible for payment of all such taxes, levies, VAT or duties applicable to your transaction.
5. Intellectual Property.
- 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
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
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
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 EACH OF THEIR OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "EYEQUE AFFILIATES") MAKE NO
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
- 6.3. INTERNET SECURITY. THE INTERNET MAY BE SUBJECT TO BREACHES OF SECURITY. EYEQUE AND THE
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
- 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
7. Limitations of Liability.
- 7.1. APPLICABILITY OF LIMITATIONS. As a consumer, you have certain legal rights. The
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.
- BY ACCESSING THIS SERVICES AND/OR ACCEPTING ANY INFORMATION FROM THIS SERVICES
YOU AGREE TO
INDEMNIFY, DEFEND AND HOLD EyeQue AND THE EyeQue AFFILIATES HARMLESS FROM AND AGAINST ANY ACTUAL OR ALLEGED
CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF
DEFENSE (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO: (A) YOUR BREACH OF
THIS AGREEMENT; (B) YOUR VIOLATION OF ANY LOCAL, STATE, FEDERAL OR INTERNATIONAL LAW, RULE OR REGULATION; (C) A
CLAIM BY A THIRD PARTY THAT IS BASED ON YOUR USE OF THE SERVICES OR THE CONTENT;(D) INFORMATION OR MATERIAL
POSTED OR TRANSMITTED THROUGH YOUR COMPUTER, MOBILE DEVICE OR ACCOUNT, EVEN IF NOT SUBMITTED BY YOU; (E) ANY
MISREPRESENTATION MADE BY YOU; (F) ANY DISPUTE BETWEEN YOU AND ANOTHER USER OF THE SERVICES; (G) THE THEFT,
MISAPPROPRIATION OR DISCLOSURE OF YOUR USERNAME/PASSWORD/PIN; AND (H) YOUR AUTHORIZATION OF ANYONE ELSE TO USE
YOUR PASSWORD. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN EyeQue’S DEFENSE OF ANY CLAIM. YOU
SHALL NOT, IN ANY EVENT, SETTLE ANY MATTER WITHOUT THE WRITTEN CONSENT OF EyeQue.
9. Use of Other Mobile Services.
- Your use of the Services may also involve the use of one or
that make the EyeQue mobile Applications available to you (the “Mobile Services Services”) such
as the Google
Play Store, the Apple App Store and elements of the Services that are provided by Google or Apple. Your use of
the Services may also involve Services provided by carriers that provide you with mobile connectivity such as
T-Mobile, Verizon, AT&T, Sprint or another carrier (the “Mobile Carrier Services”).
Notwithstanding anything to
the contrary, the Mobile Services and the Mobile Carrier Services are not a part of the Services and any matters
that pertain to the Mobile Services or Mobile Carrier Services will be governed by the specific agreements
between you and those providers. You, the end-user of the Services, acknowledge that these Terms are entered
into by and between EyeQue and you and not with these other providers. For Android users, as between you, Google
and EyeQue, to the extent that your use of the Services involves Google or any of the Mobile Services offered by
Google, Google’s standard terms (https://play.google.com/about/developer-distribution-agreement.html, which are
incorporated by reference) will govern your use of the Services, but only to the extent that it conflicts with
these Terms. For Apple iOS users, as between you, Apple and EyeQue, to the extent that your use of the Services
involves Apple or any of the Mobile Services offered by Apple, Apple’s standard application terms
(http://www.apple.com/legal/itunes/appstore/dev/stdeula/, which are incorporated by reference) will govern your
use of the Services, but only to the extent that it conflicts with these Terms.
10. Dispute Resolution and Arbitration.
- 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
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
limited. Arbitration is final and binding and subject to only very limited review by a court. This
clause shall survive termination of this Agreement.
- 10.3. Arbitration Procedures. The arbitration of any dispute or claim shall be conducted in
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,
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
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
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.
EyeQue Data Processing Addendum
This EyeQue Data Processing Addendum (“Addendum”
) amends the EyeQue Terms of Service (the
) 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
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
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. Data Protection.
- 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
- 2.1. Process the Personal Data as a Data Processor, only for the purpose of providing
the Services in
accordance with documented instructions from you (provided that such instructions are commensurate with
the functionalities of the Services), and as may subsequently be agreed to by you. If EyeQue is required
by law to Process the Personal Data for any other purpose, EyeQue will provide you with prior notice of
this requirement, unless EyeQue is prohibited by law from providing such notice;
- 2.2. notify you if, in EyeQue’s opinion, your instruction for the processing of
Personal Data infringes
applicable Data Protection Legislation;
- 2.3. notify you promptly, to the extent permitted by law, upon receiving an inquiry or
complaint from a
Data Subject or Supervisory Authority relating to EyeQue’s Processing of the Personal Data;
- 2.4. implement and maintain appropriate technical and organizational measures to
protect the Personal
Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft,
alteration or disclosure. These measures shall be appropriate to the harm which might result from any
unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and
appropriate to the nature of the Personal Data which is to be protected;
- 2.5. provide you, upon request, with up-to-date attestations, reports or extracts
thereof where available
from a source charged with auditing EyeQue’s data protection practices (e.g. external auditors, internal
audit, data protection auditors), or suitable certifications, to enable you to assess compliance with the
terms of this Addendum;
- 2.6. notify you promptly upon becoming aware of and confirming any accidental,
unauthorized, or unlawful
processing of, disclosure of, or access to the Personal Data;
- 2.7. ensure that its personnel who access the Personal Data are subject to
that restrict their ability to disclose the Customer Personal Data; and
- 2.8. upon termination of the Agreement, EyeQue will promptly initiate its purge process
to delete or
anonymize the Personal Data. If you request a copy of such Personal Data within 60 days of termination,
EyeQue will provide you with a copy of such Personal Data.
- 2.3 In the course of providing the Services, you acknowledge and agree that EyeQue may use
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
- 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 atEyeQue.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,
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
- 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.