1. Introduction
a. These Terms and Conditions (“Terms”) govern your access to and use of EyeQue’s products, services, devices, and website (collectively, the “Services”). By using our Services, you agree to be bound by these Terms, so please read them carefully.
b. Purpose
These Terms establish the legal agreement between you (“User,” “you,” or “your”) and EyeQue Corporation (“EyeQue,” “we,” “us,” or “our”). They outline your rights and responsibilities when using our Services, including any limitations, disclaimers, and obligations to ensure a safe experience.
c. Definitions
• “Services” refers to all products, devices, software, applications, websites, and other offerings provided by EyeQue.
• “User” refers to any individual or entity accessing or using the Services.
• “Account” means a registered profile created by a User to access certain features of the Services.
• “Content” includes all text, images, data, software, and other materials made available through the Services.
• “Third-Party Services” refers to any external platforms, software, or entities that may interact with or be integrated into our Services.
• “User Submissions” are any information you provide to us through your use of the Services.
• “EyeQue Parties” include EyeQue and its parents, subsidiaries, officers, employees, contractors, and agents and each of their officers, employees, contractors, and agents.
d. Please Read Carefully
By accessing or using our Services, you acknowledge that you have read, understood, and agreed to these Terms. If you do not agree to any part of these Terms, please refrain from using our Services. We may update these Terms from time to time, and it is your responsibility to review them periodically to stay informed about any changes.
2. Scope
a. Essential Function.
i. The Services provide a method for understanding and observing certain aspects of your vision. Measurements intend to provide estimates of various vision related parameters.
ii. EyeQue does not practice medicine and does not provide any medical services. It is made clear that none of the Services may be considered medical or health advice or services.
iii. 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 result in the provision of inaccurate information to you.
iv. Services may provide information from eyecare or healthcare professionals. This information provided by the Services is not a recommendation, referral or endorsement by EyeQue of the quality or competency of the eyecare or healthcare professionals. Eyecare professionals are users of EyeQue Services. The Service shall be used for convenience only. EyeQue takes no responsibility 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 via the Services.
b. Eligibility and Account Responsibilities
i. Most Services are intended for individuals 18 years or older. Certain Services may be available to users under 18 but require the consent and supervision of a parent or legal guardian. By using these Services, the parent or guardian agrees to be responsible for the minor’s compliance with these Terms.
ii. To use certain features of the Services, you may need to create an account. You agree to provide accurate, complete, and up-to-date account information and to update such information as needed. Failure to do so may result in suspension or termination of your account.
iii. You are responsible for maintaining the confidentiality of your account details, including your password, and for all activities conducted under your account. If you suspect unauthorized use of your account, you must notify EyeQue immediately. EyeQue is not liable for any loss or damage arising from your failure to protect your account credentials.
c. Geographic restrictions
i. Services are intended for persons located in the United States. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
ii. Due to state and local regulations some of the Services may not be available in all locations.
d. 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.
e. Updates.
i. 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”).
ii. Updates may 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.
iii. In case of software related Updates, you are expected to 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.
iv. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of these Terms.
f. Purchases.
i. EyeQue requires payment of a fee for use of the Services (or certain portions thereof).
ii. 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.
iii. 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).
iv. 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 fees and applicable taxes, if any, are payable in United States dollars.
v. All payments for Transactions are non-refundable and non-transferable. All sales are Final.
vi. Subscription Services will be charged a monthly or annual 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.
vii. By purchasing a subscription, you authorize EyeQue to initiate recurring non-refundable payments. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each year or month (as applicable) of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription.
viii. Subscription cancelation should be notified in writing 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 when the Subscription Fee is to be renewed. 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.
g. Third Party Materials and Sources.
i. 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 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.
ii. The Services 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.
3. Privacy
Your privacy is important to us. EyeQue maintains a separate Privacy Policy that explains how we collect, use, and protect your personal information. By using our Services, you acknowledge and agree that your data may be collected and processed in accordance with our Privacy Policy. We encourage you to review the Privacy Policy regularly to stay informed about our data practices.
4. Ownership
a. Grant of License
i. Subject to your compliance with these Terms, you are hereby granted a non-exclusive, non-transferable right to use the Services.
ii. 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.
iii. 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.
iv. 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.
v. 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.
vi. 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.
b. General Prohibitions
i. You agree not to do any of the following:
• 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.
ii. 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.
c. EyeQue Content and Ownership
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.
d. User Submissions
You agree that we may use your User Submissions in order to operate, provide, and improve the Services.
e. 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.
f. 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.
5. Disclaimers
a. 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.
b. No reliance on information
EyeQue and 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.
c. Internet security
EyeQue keeps internet security as a high priority in our Services. Nevertheless, despite all attempts at securing all data, 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, malware, tampering, unauthorized intervention, fraud, scams, 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. 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
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.
8. Indemnification
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. Dispute Resolution
a. Mandatory Arbitration of Disputes
EyeQue and the User 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.
b. Exceptions and Opt-out
As limited exceptions to Section 9.a. 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.
c. 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.
d. Severability.
With the exception of any of the provisions, 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.
10. Term and Termination
The Terms take effect when you agree to them or begin using the Services and will remain in effect until terminated by either you or EyeQue.
You may terminate these Terms at any time by notifying EyeQue via email at support@EyeQue.com and ceasing all use of the Services. EyeQue reserves the right to suspend or terminate your access to the Services at its sole discretion, without prior notice. EyeQue is not liable to you for any termination, suspension, modification, or discontinuation of the Services.
Upon termination: (i) Sections 2.f., 4.c., 4.d., 4.e., 5, 6, 7, 8, 9, 10, and 12 will remain in effect; (ii) all rights granted to you under these Terms will be revoked; and (iii) you must cease all use of the Services. Termination does not limit EyeQue’s rights or remedies available under the law or in equity.
11. Changes
EyeQue reserves the right to update, modify, or revise these Terms at its sole discretion. Any changes will be posted on our website, and unless stated otherwise, will take effect immediately upon posting. By continuing to use our Services after the updated Terms are posted, you acknowledge and agree to the changes. If you do not agree to the revised Terms, you must discontinue your use of the Services.
Additionally, because our Services may evolve over time, we reserve the right to modify, suspend, or discontinue any part of the Services at any time without prior notice and at our sole discretion.
12. General
a. Reservations of Rights
EyeQue and its licensors exclusively own all rights, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, patent 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.
b. 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.
c. Entire Agreement
i. 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. However, certain Services may require additional agreements, which will be provided separately and will govern to the extent they conflict with these Terms.
ii. 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.
iii. 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.
d. Notices
Any notices or other communications provided by EyeQue under these Terms will be given by posting to the Services.
e. 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.
f. Force Majeure
The failure of EyeQue to comply with these Terms due to an act of God, war, fire, riot, terrorism, severe weather, earthquake, kidnapping, tsunami, extraterrestrial events, 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.
g. 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
