Terms of Service
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
Last Updated: August 13, 2024
1. ACCEPTANCE OF TERMS
Welcome to Eyeconic. The following terms of service (these "Terms of Service") govern your access to and use of this website www.eyeconic .com (the "Website") and your purchase of prescription and non-prescription optical products, including without limitation, contact lenses ("Services”).
PLEASE READ THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS CAREFULLY BEFORE USING THE EYECONIC WEBSITES OR ITS SERVICES. THESE TERMS GOVERN YOUR USE OF THE EYECONIC WEBSITES AND ITS SERVICES IN GENERAL. BY USING THE EYECONIC WEBSITES AND SERVICES, YOU INDICATE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS.
These Terms of Service constitute the entire agreement between you and Eyeconic, Inc. (“Eyeconic” or “we”) with respect to the subject matter of these Terms of Service. Any questions, comments or complaints regarding the Website should be directed to the Eyeconic Customer Service Team at 1-855-EYECONIC (1-855-393-2664) or info@eyeconic.com or by mailing us at our principal place of business 3333 Quality Drive, Rancho Cordova California 95670. If you are a California resident, Consumer Assistance at the Division of Consumer Services of the Department of Consumer Affairs is at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or 1.800.952.5210.
2. MODIFICATIONS AND UPDATES
Eyeconic reserves the right to modify these Terms of Service at any time in its sole discretion. If we make a material change to the Terms, we will notify you, such as by posting a notice on our website or sending a message to the email address associated with your account. By continuing to access or use the Services, you agree to be bound by the revised Terms.
3. NO PROFESSIONAL ADVICE
Information supplied through this Website or by any of our employees or agents, whether by telephone, e-mail, letter, facsimile or other form of communication, is for informational purposes or general guidance and does not constitute medical or other professional advice. Health-related information provided through this Website is not a substitute for medical advice and it is important that you not make medical decisions without first consulting your personal physician or other healthcare professional. The receipt of any questions or feedback you submit to us does not create a professional relationship and does not create any privacy interests other than those described in our Privacy Statement.
4. ELECTRONIC COMMUNICATIONS
When you visit www.eyeconic.com or send e-mails to us, you are communicating with us electronically and are consenting to receive communications from us electronically regarding a purchase or response to a question or comment or because you have chosen to receive promotional, legal or reminder emails about your optical products. We will communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
5. EYECONIC SERVICES
Eyeconic operates this Website to facilitate the sale of prescription and non-prescription optical products, including without limitation, contact lenses.
To purchase optical products through this Website, you consent(a) for prescription verification, your eye care practitioner (an “ECP”) must be notified of all prescription products sold to you, and (b) your ECP disclosing your prescription and other related information to Eyeconic, its suppliers, and service providers as necessary to fulfill your order. To purchase optical products through this Website, you must be at least eighteen years old or.
You understand and agree that Eyeconic, at its discretion, at any time and without notice, reserves the right to modify, enhance or supplement the Website or the services provided through the Website. You further understand and agree that any such changes will automatically constitute part of the services and as such, will also be subject to these Terms of Service unless expressly stated otherwise. You understand and agree that Eyeconic, at its discretion, at any time and without notice, reserves the right to discontinue the Website, the services or both, including without limitation access to any content, products or services offered in connection with the Website, in whole or in part, temporarily or permanently, before or after submission of an order to purchase optical products. Eyeconic takes no responsibility and assumes no liability to you or any third party for any such modification or discontinuation. If your credit card has already been charged for the purchase and your order is cancelled, Eyeconic shall issue a credit to your credit card account in the amount of the incorrect price.
Eyeconic hopes to make the Website available all day, every day, with the exception of scheduled maintenance. Many factors, however, impact the availability of the Website, including without limitation maintenance, system, or equipment failure or problems encountered with suppliers or service providers, and Eyeconic does not guarantee the availability or functionality of the Website.
6. ACCOUNTS AND USING YOUR PASSWORD
When you create an account you agree that any information you provide and maintain is accurate, current, and complete, including your contact information for notices and other communications from us and your payment information.
When you register an account or change your account information, you shall receive a confirmation of the same on the email address associated with your account. All content or instructions transmitted by or received from anyone presenting your password on the Website will be deemed binding on you. You agree that you are solely liable for all actions taken via your username and password, including without limitation all communications, submissions, or financial obligations, whether or not made with your knowledge or authority. You agree to guard your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the Website for which you will be legally responsible. If you suspect that someone who is not you may have obtained access to your password, change the password immediately. If you are unable to change your password or you suspect unauthorized activity with your password and username, contact the Eyeconic Customer Service Team at 1.855.EYECONIC or info@eyeconic.com immediately.
7. PRICING
All prices online for purchase and offers associated with them are subject to change. Except where noted otherwise, the prices displayed for products on the Website represent the full retail price of the products themselves, minus any offers that are available online. If you choose to make a purchase on this Website utilizing insurance coverage information, the purchase price that you owe on such purchase will be based on your insurance coverage information as that coverage information is provided to Eyeconic by your insurance carrier. Despite our best efforts, a small number of the items in our catalog may be mispriced, or we may receive inaccurate insurance coverage information if you choose to make a purchase on this Website utilizing insurance coverage information. If the correct price of an item sold through the Website is higher than our stated price, or if the correct price is higher than our stated price due to inaccurate insurance coverage information, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
8. ORDERING AND PAYMENT POLICIES
Eyeconic only accepts valid credit cards or other payment method as indicated on the Website (the “Payment Method”). By submitting your order, you represent and warrant that you are authorized to use the Payment Method and that you authorize Eyeconic to charge your entire order to that Payment Method. If the Payment Method is invalid, cannot be verified, or is otherwise unacceptable, Eyeconic may suspend or cancel your order without notice. You agree to keep your Payment Method current until the order is complete and to quickly resolve any problems that Eyeconic encounters while processing your order. You shall make and keep a copy of all records relating to your order, including without limitation your order confirmation page.
Any applicable taxes and shipping and handling charges are additional. All prices are listed in U.S. dollars and are subject to change without notice.
If the product you order is manufactured and sold by a company under multiple labels, you agree that any of those labels may be substituted for the label you order. All items are subject to availability and Eyeconic reserves the right to impose quantity limits, to reject all or part of an order, and to discontinue products without notice. Some frame and lens combinations are not ideally compatible. If you order one of these combinations, Eyeconic will contact you to so you can choose an alternative frame or lens.
9. ORDER ACCEPTANCE/CONFIRMATION
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. The Website reserves the right at any time after receipt of your order to accept or decline your order for any reason.
10. USING PROMOTIONAL CODES AND COUPONS
Promotional codes are debited at the time an order is placed. Promotional coupons will automatically be redeemed to purchase totals, up to the total purchase amount. Promotional codes and coupons must be used prior to their noted expiration date and within a single transaction. Coupons cannot be replaced if they are lost, stolen, deleted, or if you cancel or return your purchase. In the event of a reduction in price below the coupon value, the excess value of the coupon will not be refunded. For purchases on this Website you choose to make utilizing insurance coverage information, please be aware that retail promotions, offers and discounts cannot be combined with an insurance purchase, unless specifically allowed by the terms of any promotion, offer or discount. For more information, see the terms associated with the promotional codes and coupons.
11. PRODUCT DESCRIPTIONS
We have made every effort to display and describe as accurately as possible the products that appear on the Website. However, the appearance of certain characteristics of the products, such as color, will depend on your monitor and we cannot guarantee that your monitor's display of any color will be accurate. We do not warrant that the product descriptions are accurate, complete, reliable, current or error-free. If any product offered by the Website is not as described, your sole remedy is to return it in unused condition.
12. SHIPPING
To make a purchase on the Website, you must have a United States shipping address. Shipments will not be made to a post office box. Shipping and handling fees are available at check-out and Eyeconic reserves the right to change the fees from time to time without notice. You agree to be bound by the details that appear when you complete your order. Shipping and handling fees may or may not reflect actual costs.
All orders are shipment contracts, not destination contracts, which means that the risk of loss and title for such items pass to you upon our delivery to the carrier and any shipping time shown on the Website is an estimate only and actual delivery dates may vary.
13. RETURNS AND PROBLEMS WITH OPTICAL PRODUCTS
We want you to be completely satisfied with your purchase. If you’re not, we’re happy to give you a refund or exchange.
Please follow the instructions on eyeconic.com to initiate a return or otherwise contact the Eyeconic Customer Service team at 855.EYECONIC (855.393.2664) or info@eyeconic.com. They’ll provide a Return Number (RN) for you to send the merchandise back to Eyeconic within 30 days of the original shipping date.
A FEW THINGS TO NOTE:
We can’t refund you for glasses damaged beyond normal wear and tear or contact lenses and vials removed from their original packaging. You must return all products in the resalable packaging they came in – glasses must return with resalable frame case, and contact lenses must return in original sealed box. The product and packaging may not be tampered with including but not limited to markings, writing or stickers on them.
All refunds will be credited to whatever payment method you chose at checkout. It usually takes about 7-10 business days from the time we process your return for you to receive the credit.
IF YOU HAVE PROBLEMS WITH YOUR OPTICAL PRODUCT, INCLUDING WITHOUT LIMITATION, CONTACT LENSES, PLEASE CONTACT YOUR OPTOMETRIST. IF YOU HAVE UNEXPLAINED EYE DISCOMFORT, WATERING, VISION CHANGE, OR REDNESS, REMOVE YOUR OPTICAL PRODUCT IMMEDIATELY AND CONSULT YOUR ECP BEFORE USING OR WEARING THEM AGAIN.
After wearing your new contact lenses, return to your prescribing optometrist for proper evaluation and verification of fitment, insertion and follow-up care. If you do not return to your prescribing optometrist, your prescribing optometrist shall not be responsible for any damages or injury resulting from the prescribed lenses.
WARNING: If you are having any of the following symptoms, remove your lenses immediately and consult your optometrist before wearing your lenses again: Unexplained eye discomfort, watering, vision change or redness.
14. RESTRICTIONS ON USE
In addition to the other restrictions provided in these Terms of Service, you may not, while accessing or using the Website, engage in any of the following activities: (a) provide false or misleading registration information; (b) disclose your username or password to anyone; (c) use the account, username, password, or personal information of another user; (d) harvest or collect information about any users of the Website; (e) use any robot, spider, Website search, or retrieval application or automatic device to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Website or its content; (f) modify the information, content, programs, or other materials on the Website or hack into or access the server or Website in an unauthorized manner; (g) frame or mirror any part of the Website; (h) use the Website in a manner inconsistent with applicable laws, rules, and regulations; (i) upload or input to the Website any information that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any portion or system of the Website; or (j) reverse engineer, decompile, disassemble, translate, or otherwise alter any portion of the Website.
All Products are sold only for personal, non-commercial use or to give as a gift. You may not make the Products available for commercial resale, or use the Products for any commercial purpose without our prior consent.
15. THIRD PARTY WEBSITES, PRODUCTS, AND SERVICES
Eyeconic may link to various external websites that are not under the control of Eyeconic and you agree that Eyeconic is not responsible for the content, products, or services offered and/or sold by any linked Website or any link contained in a linked Website. Eyeconic does not assume any responsibility or liability for the actions, products, or content of any of these or other third-party websites. Links are provided solely for your convenience and Eyeconic does not guarantee the accuracy or completeness of, or endorse any content of any external website. Eyeconic reserves the right to terminate any link or linking program at any time. If you decide to access any of the third party Websites linked to this Website, you do so entirely at your own risk and in no event will Eyeconic be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused in connection with the use of any external website. You should read the terms and conditions, including privacy policies, of any third parties to understand the rules and policies governing your use of their services or products.
16. PRIVACY
To understand our privacy practices and how we may collect, use, store and share your Personal Information, when you use this Website, please click here to review our Privacy Statement, which is incorporated herein by reference.
17. OWNERSHIP
All content on the Website, including without limitation the text, graphics, images, URLs, script, and logos, is the property of Eyeconic or its content suppliers and business affiliates and is protected under the copyright, trademark, and other laws of the United States. Nothing on the Website grants you any right or license to use any of the content on the Website without the express written permission of Eyeconic. Except as may be explicitly permitted on the Website, you shall not copy, modify, display, post, upload, republish, distribute, sell, license, create derivative works from, or transmit anything you obtain or view on the Website unless you first obtain Eyeconic written permission.
Except with regard to Personal Information and Protected Health Information as that term is defined in our Privacy Statement and the HIPAA Notice of Privacy Practices, all information you post on the Website or communicate to Eyeconic through the Website (collectively, “Submissions”) will forever be the property of Eyeconic. Eyeconic shall not treat any Submission as confidential and shall have exclusive ownership of all present and future existing rights to any Submission of every kind and nature everywhere. You hereby represent that your Submission does not infringe the rights of any third party.
18. LIMITATION OF LIABILITY
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL EYECONIC, ANY EYECONIC AFFILIATE, CONTRACTOR, SUPPLIER, SERVICE PROVIDER, EMPLOYEE, AGENT, OR LICENSOR OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WEBSITE OR ITS SERVICES (THE "EYECONIC AFFILIATES") BE LIABLE IN ANY MANNER WHATSOEVER (A) FOR ANY DECISION MADE OR ACTION TAKEN OR OMITTED BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE WEBSITE; (B) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; (C) FOR UNAUTHORIZED ACCESS TO OR ALTERATIONS OF YOUR THIRD PARTY CONTENT OR OTHER INFORMATION; AND (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES, LOST PROFITS, LOST DATA ON YOUR EQUIPMENT, OR OTHERWISE, WHICH MAY RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE WEBSITE OR ITS SERVICES (INCLUDING WITHOUT LIMITATION ANY SERVICE, PRODUCT, INFORMATION OR FUNCTIONALITY), EVEN IF EYECONIC OR THE EYECONIC AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, OR MISREPRESENTATION. THE AGGREGATE LIABILITY OF EYECONIC AND THE EYECONIC AFFILIATES RISING FROM OR RELATING TO THESE TERMS OF SERVICE (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO (A) THE AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, WHICH AMOUNT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO EYECONIC FOR THE TRANSACTION AT ISSUE OR (2) SUBSTITUTION OR REPLACEMENT OF THE ITEM GIVING RISE TO THE DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE EXCLUSIONS SET FORTH IN THIS SECTION MAY NOT APPLY TO YOU DEPENDING ON YOUR JURISDICTION.
These Terms of Service are not intended to negate any warranties provided to you by the distributor or manufacturer of lenses that you purchase through the Website.
19. DISCLAIMER OF WARRANTY
USE OF THE WEBSITE IS ENTIRELY AT YOUR OWN RISK. EYECONIC MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE WEBSITE AND ITS SERVICES. EXCEPT AS SET FORTH BELOW, THE WEBSITE AND ITS SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EYECONIC DOES NOT WARRANT THAT THE CONTENT OR ANY INFORMATION RECEIVED THROUGH THE WEBSITE ARE ACCURATE, RELIABLE, UNINTERRUPTED, OR CORRECT; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT OR ANY INFORMATION RECEIVED THROUGH THE WEBSITE IS FREE OF VIRUSES OR OTHER DESTRUCTIVE OR HARMFUL COMPONENTS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE EXCLUSIONS SET FORTH IN THIS SECTION MAY NOT APPLY TO YOU DEPENDING ON YOUR JURISDICTION.
Neither Eyeconic nor any other service provider or supplier provides any express warranty for any product sold through the Website. It is possible that the manufacturer of the product that you order may provide an express warranty. Any express warranty will only apply if a written warranty labeled "Limited Warranty" or "Full Warranty" is delivered with the product. Not all products come with a manufacturer’s warranty.
20. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Eyeconic and Eyeconic Affiliates from all liabilities, claims and expenses, including without limitation attorneys’ fees, that arise from your use of the Website or any services, information or products of the Website or any violation of these Terms of Service.
21. THIRD-PARTY BENEFICIARIES
Except as expressly stated otherwise, there are no third-party beneficiaries of these Terms of Service.
22. TERMINATION
Eyeconic may suspend or terminate your use of and access to the Website immediately at any time without notice, with or without cause. You shall remain liable for any obligation, including any amount due, that you incurred before suspension or termination. Any actions in violation of these Terms of Service may subject you to civil and criminal legal penalties and Eyeconic reserves the right to seek any remedy available at law or in equity for any violation of these Terms of Service.
You may terminate your use of the Website and your username and password at any time by contacting the Eyeconic Customer Service Team at 1-855-EYECONIC (1-855-393-2664). You shall remain liable for any obligation, including any amount due you incurred prior to termination.
23. DISPUTE RESOLUTION (INCLUDING INFORMAL DISPUTE RESOLUTION; BINDING ARBITRATION, CLASS ACTION WAIVER, JURY TRIAL WAIVER)
Please read this section carefully – it significantly affects your legal rights, including your right to file a lawsuit in court.
(a) Applicability
To the fullest extent allowed by applicable law, you and we agree to submit all Disputes (defined below) between us to individual, binding arbitration pursuant to the provisions in this “Dispute Resolution” Section. A “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between you and us that in any way relates to or arises from any aspect of our relationship, including, without limitation, your use or attempted use of the Sites, your relationship with us, and all matters relating to or arising from these Terms of Service, our Privacy Statement, or any other agreement between you and us, including the validity and enforceability of this agreement to arbitrate, and including any dispute, claim, or controversy that arose prior to the effective date of these Terms of Service. A Dispute shall be subject to binding, individual arbitration regardless of whether it is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. This includes claims that accrued before you agreed to these Terms. You understand that there is no judge or jury in arbitration and that court review of an arbitration award is limited.
(b) Initial Dispute Resolution
We hope no Dispute ever arises. We are available by email at info@eyeconic.com to address any concerns you may have regarding your use of the Sites. Most concerns may be quickly resolved in this manner.
In an effort to accelerate resolution and reduce the cost of any Dispute between us, you and we agree to personally meet and confer telephonically or via videoconference in a good faith effort to resolve informally any Dispute prior to either party initiating a lawsuit or arbitration (“Initial Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference, as will we. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Initial Dispute Resolution Conference (“Notice”), which shall occur within 60 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. The Initial Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party sends a Notice, even if the same law firm or group of law firms represents multiple users in similar cases; unless all parties agree, multiple individuals initiating a Dispute cannot participate in the same Initial Dispute Resolution Conference. If we have a Dispute with you, we will send Notice of that Dispute to your billing address and/or email address you have provided to us. If you have a Dispute with us, you will send Notice to us in writing at the following email address: info@eyeconic.com, using the subject line “Initial Dispute Resolution Conference.” Your Notice must be individual to you and must include, as applicable, your name, email address, and your residential address. The Notice also must describe the Dispute, explain the facts of the Dispute as you understand them, and tell us what you want us to do to resolve the problem. A notice of Dispute will not be valid, will not commence the time period for the Initial Dispute Resolution Conference, and will not allow you or us later to initiate a lawsuit or arbitration, unless it contains all of the information required by this paragraph. Engaging in the Initial Dispute Resolution Conference is a mandatory condition precedent and requirement that must be fulfilled before commencing arbitration. If either of us commences an arbitration without having previously provided a valid and compliant Notice, you and we agree that the applicable arbitration provider (or the arbitrator, if one has been appointed) must suspend the arbitration until the party that initiated it participated in an Initial Dispute Resolution Conference after sending Notice as required by this paragraph. If either party violates this Initial Dispute Resolution paragraph, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or court proceeding, and, unless prohibited by law, the arbitration provider shall neither accept nor administer any such arbitration nor assess fees in connection with such arbitration. The statute of limitations and all filing fee deadlines shall be tolled while the parties engage in the Initial Dispute Resolution Conference process required by this paragraph.
(c) Binding Arbitration
If a Dispute cannot be resolved through negotiations during the Initial Dispute Resolution Conference, then either you or we may elect to have the Dispute finally and exclusively resolved by binding arbitration, unless an exception applies as stated below under “Exceptions.” The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules, including the Mass Arbitration Supplementary Rules (as applicable), (the “AAA Rules”) effective as of the date of the Notice of Dispute, which are available at the AAA website, https://www.adr.org/Rules, as modified by these Terms of Use.
Arbitration hearings may be conducted by videoconference unless the arbitrator believes an in-person hearing is necessary. In such instances, the location of an arbitration hearing will be decided pursuant to the AAA Rules.
The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law. The decision of the arbitrator shall be final and binding on you and us, and any award of the arbitrator may be entered in any court of competent jurisdiction.
The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration, except as set forth in the “Exceptions” section below. The arbitrator has authority to decide all issues of validity, enforceability or arbitrability, including, but not limited to, where a party raises as a defense that any portion of this agreement is not enforceable, subject to the “Exceptions” section below.
If a lawsuit filed in court includes claims or requests for relief that are arbitrable and claims or requests for relief that are not, you and we agree that any non-arbitrable claims or requests for relief shall be stayed pending the completion of the arbitration of the arbitrable claims or requests for relief.
Your and our right to recover attorneys’ fees, costs and arbitration fees shall be governed by the laws that apply to the parties’ dispute, as well as any applicable arbitration rules.
(d) Class Action and Class Arbitration Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action, and the parties expressly waive their right to file a class action or seek relief on a class basis.
Although the parties have agreed that no disputes may proceed as part of a class arbitration, you and we agree that the AAA may consolidate an individual arbitration filed under these Terms of Service with other individual arbitration(s), at the request of any party, if the arbitrations share any common issues of law or fact. The consolidation issue shall be determined by a Process Arbitrator, if a Process Arbitrator is appointed by the AAA. Any disputes over whether an arbitration claim should be consolidated with others, or which arbitrator shall hear any consolidated matter, shall be resolved by the AAA.
If any court or arbitrator determines that the class action and class arbitration waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(e) Fees
Each party will be responsible for its arbitration fees as set by AAA. For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less, the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, unless the total damages awarded are less than the amount of a settlement offered by us during the Initial Dispute Resolution Period as outlined above. The arbitrator may also award us our attorney fees, expert witness fees and costs if it is determined that your claim was brought in bad faith, for purposes of harassment, or is patently frivolous.
If multiple individual arbitration proceedings are consolidated pursuant to the Class Action and Class Arbitration Waiver section above, AAA and the arbitrator shall treat the consolidated proceedings as one arbitration for purposes of assessing AAA fees and the arbitrator’s compensation, and you consent and agree not to object to any reduction or elimination of AAA fees or arbitrator compensation.
(f) Exceptions
Small Claims Court Claims. Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction and on an individual (non-class) basis only. If a party initiates an arbitration asserting a claim that falls within the jurisdiction of the small claims court, the other party may, at its discretion, require that the arbitration demand be withdrawn and that the claim be filed in the small claims court.
California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California's Private Attorneys General Act.
Intellectual Property, Trade Secret, and Moral Rights Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation. Such claims are subject to the jurisdiction provisions below.
(g) 30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in sections above by sending written notice of your decision to opt-out to the following email address: info@eyeconic.com. The notice must be sent within thirty (30) days of your registration for an account on eyeconic.com, or your agreement to these Terms of Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
(h) Exclusive Venue for Litigation
To the extent that the arbitration provisions set forth above do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Texas (except for small claims court actions which may be brought where you reside). The parties expressly consent to exclusive jurisdiction in Texas for any litigation other than small claims court actions.
24. NOTICE AND COMMUNICATIONS
You agree that Eyeconic or its suppliers and service providers may communicate with you by email about current or past orders, information provided by your ECP and all related matters, including without limitation delivering notices or disclosures to you. Eyeconic or its suppliers and service providers reserve the right to communicate with you by other means, including without limitation postal mail, from time to time.
25. SEVERABILITY
If any provision of these Terms of Service is held to be unlawful, void, or unenforceable for any reason, that provision will be deemed severable and will not affect the validity or enforceability of any other provision. The unenforceable provision will be amended so as to best accomplish the objectives of the provision within the limits of applicable law.
26. NO WAIVER
Neither the failure nor delay of Eyeconic to exercise any right, remedy, power, or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any other right, remedy, power, or privilege, nor will any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by Eyeconic.
27. NOTICE OF AVAILABILITY OF FILTERING SOFTWARE
IT IS EYECONIC’S VIEW THAT THE WEBSITE DOES NOT CONTAIN MATERIALS THAT WOULD TYPICALLY BE THE SUBJECT OF FILTERING SOFTWARE. NEVERTHELESS, ALL USERS ARE HEREBY INFORMED BY Eyeconic, THE PROVIDER OF THIS INTERACTIVE COMPUTER SERVICE, THAT PARENTAL CONTROL PROTECTIONS (SUCH AS COMPUTER HARDWARE, SOFTWARE OR FILTERING SERVICES) ARE COMMERCIALLY AVAILABLE THAT MAY ASSIST IN LIMITING ACCESS TO MATERIAL THAT IS HARMFUL TO MINORS. A REPORT DETAILING SOME OF THOSE PROTECTIONS CAN BE FOUND UNDER THE CHILDREN’S INTERNET PROTECTION ACT: REPORT ON THE EFFECTIVENESS OF INTERNET PROTECTION MEASURES AND SAFETY POLICIES
28. NOTICE OF NO HARVESTING OR DICTIONARY ATTACKS ALLOWED
EYECONIC WILL NOT GIVE, SELL, OR OTHERWISE TRANSFER ADDRESSES PROVIDED IN CONNECTION WITH THE USE OF THE WEBSITE TO ANY OTHER PARTY FOR THE PURPOSE OF INITIATING OR ENABLING OTHERS TO INITIATE EMAIL MESSAGES EXCEPT AS STATED IN THE PRIVACY AND SECURITY POLICY OR BY YOUR CONSENT. EXCEPT FOR PERSONS REFERENCED IN THAT POLICY (IF ANY) AS AUTHORIZED RECIPIENTS OF THOSE ADDRESSES, PERSONS MAY VIOLATE FEDERAL LAW IF THEY: (1) INITIATE THE TRANSMISSION TO OUR COMPUTERS OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. “CAN-SPAM ACT OF 2003”) THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
29. WEBSITE CONTENT
The content of this Website is for general informational awareness purposes only. Please consult your ECP for actual advice. Eyeconic shall not be deemed to be engaged in the corporate practice of optometry or medicine as a result of providing this Web Website, and expressly disclaims responsibility for any consequences related to any use, misuse, and/or interpretation of the Website or any of the information contained herein/therein.
30. WARRANTY CLAIM RELEASE OF LIABILITY
BY SUBMITTING A WARRANTY CLAIM AND RETAINING YOUR WARRANTY GLASSES UNTIL RECEIPT OF YOUR REPLACEMENT, WHICH IS NOT EYECONIC’S STANDARD POLICY, YOU ARE AGREEING TO THE FOLLOWING RELEASE.
SEEK THE ADVICE OF LEGAL COUNSEL IF YOU ARE UNSURE OF ITS EFFECT.
In consideration of Eyeconic ("Eyeconic") allowing you (the "Releasor") to retain custody and control of your prescription glasses for which you have submitted a warranty claim for ("Warranty Glasses") and for which you are awaiting replacement glasses, you have agreed to the following release.
Associated Risks. Releasor has recently submitted a warranty repair claim to Eyeconic, Inc., a subsidiary of VSP, as a result of issues related to Releasor’s prescription eyewear. According to VSP’s normal policies and procedures related to warranty claims, Releasor has been advised that Warranty Glasses are to be sent to VSP before replacement glasses will be manufactured. However, Releasor has advised that due to exigent circumstances, Releasor must maintain custody and control over the Warranty Glasses until after the replacement glasses are made and sent to Releasor. Due to unforeseen risks in maintaining possession of and/or using the Warranty Glasses, Releasor has been advised that he/she will assume all risks in maintaining custody and control of the Warranty Glasses, along with any and all risks in any use of them from the time of the warranty claim until date of return ("Risks").
Assumption of the Risks. Releasor hereby freely assumes all Risks identified herein as well as other risks associated with the continued possession and/or use of the Warranty Glasses, to include any harm, injury or loss that may occur to Releasor or to a third-party, as a result of his/her possession and/or use of the Warranty Glasses.
RELEASE OF LIABILITY: Releasor hereby RELEASES VSP, its employees, agents, and officers ("the Released Parties") FROM ALL LIABILITIES, CAUSES OF ACTION, CLAIMS AND DEMANDS that arise in any way from any injury, death, loss or harm related to the continued possession and/or use of the Warranty Glasses, whether in Releasor’s custody or in the custody of a third-party to whom Releasor provided the Warranty Glasses to, that occur to Releasor or to any other person. This RELEASE includes claims for the negligence of the Released Parties. This RELEASE does not extend to claims for gross negligence, intentional or reckless misconduct, or any other liabilities that California law does not permit to be excluded by agreement. Releasor also agrees NOT TO SUE or make a claim against the Released Parties for death, injuries, loss or harm that occurs as a result of the continued possession and/or use of the Warranty Glasses as discussed herein.
INDEMINIFICATION HOLD HARMLESS AND DEFENSE: Releasor agrees to INDEMNIFY, HOLD HARMLESS AND DEFEND the Released Parties (defined above) against any and all claims to which this agreement applies, including claims for their own negligence or the negligence of others that are in possession of the Warranty Glasses. In accordance with these promises, Releasor will reimburse the Released Parties for any damages as a result of Releasor’s continued possession and/or use of the Warranty Glasses, reasonable settlements and defense costs, including attorney’s fees that they incur because of any such claims made against them.
